Untitled document
Building Amendment (Enforcement and Other Measures) Act 2017
No. 21 of 2017
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Registration of building practitioners
3Definitions
4When may a private building surveyor be appointed?
5Circumstances in which private building surveyor may not act
6New sections 80A and 80B inserted
7New Division 1 of Part 11 substituted and Division 1A inserted
8Meaning of disciplinary action
9Grounds for disciplinary action
10Grounds for immediate suspension
11Consequential amendments
12New section 180C inserted
13Application for licensing or registration as a plumber
14Section 221U substituted and new section 221UA inserted
15New section 241A substituted
16New section 243A inserted
17Penalties for bodies corporate
Part 3—Enforcement, building permits and building surveyors
18Definitions
19New section 15B inserted
20Offences relating to carrying out building work
21New sections 16A and 16B inserted
22Section 24A substituted and new section 24B inserted
23New section 25A substituted and sections 25AB to 25AE inserted
24Section 33 substituted
25Section 34 substituted and new sections 35A and 35B inserted
26Offences relating to compliance with direction
27Notice to owner and Authority of non-compliance with direction
28New sections 78A and 78B inserted
29New Division 1A of Part 6 inserted
30Termination of appointment
31Division 1 of Part 8 substituted
32Building notices
33Contents and form of building notice
34Building orders—general
35Building orders to stop building work
36Building orders—minor works
37Amendment or cancellation of certain building orders
38Effect of decisions under appeal
39Delegation by the Authority
40Insertion of new Subdivision 2A in Division 2 of Part 12—VBA inspectors
41Role of municipal building surveyor outside municipal district
42New section 221HA inserted
43Enforcement staff
44Repeal of sections relating to compliance auditors and plumbing inspectors
45Repeal of Division 1A of Part 13—Performance audits
46Division 2 substituted in Part 13
47Insertion of Subdivision heading in Division 2A of Part 13
48Insertion of new Subdivision 2 in Division 2A of Part 13
49Service of documents—generally
50Proceedings for offences
51Offence to hinder or obstruct
52Section 246 substituted
53New section 251A inserted
54Section 253 substituted
55New section 259AB inserted
56General regulation-making powers
Part 4—Building permit numbers and levies
57Definition
58New section 18AA inserted
59Consequential amendments relating to building permit levies
60New section 18C inserted
61Amendment to heading of Division 3 of Part 3
62New section 23A inserted
63New Division 3AA of Part 3 inserted
64Functions of the Authority
65Payments into Building account
66Building permit levy must be paid
67New section 205GA inserted
68Section 205H substituted and new section 205HA inserted
69Substitution of sections 205J and 205K and insertion of section 205KA
70New Subdivisions 4A and 4B inserted in Division 2 of Part 12
71Application of Act to the Crown and public authorities
Part 5—Miscellaneous amendments to Building Act 1993
72Definitions
73Section 6 repealed
74Decision on application for certificate of consent
75Work not to be carried out until protection requirements met
76 Section 127 substituted and new section 127A inserted
77Section 189 substituted
78New section 192A inserted
79Insurance for domestic building work to be provided by designated insurers
80Effect of decisions under appeal
81Sections 174 and 174A repealed
82Payments out of the Building account
83Council to administer building provisions in its municipal district
84Appointment of municipal building surveyor
85Section 216B substituted
86Role of municipal building surveyor outside municipal district
87People involved in a plumbing business need not be licensed or registered
88Regulations
89Undertakings
90New section 239A inserted
91New section 242A inserted
92New sections 259BA and 259BB inserted
93New section 274 inserted
94New Schedule 10 inserted
95Miscellaneous amendments
96References to Tribunal
97References to the Victorian Building Authority
98Suspension of licence where failure to comply with insurer's direction
99Updating of references
100Repeal of redundant provisions
Part 6—Amendments to Domestic Building Contracts Act 1995
101New section 29 substituted
102General contents etc. of a contract
103Breach of dispute resolution order notice
Part 7—Amendments to other Acts
Division 1—Amendments to Building Legislation Amendment (Consumer Protection) Act 2016
104New section 40A inserted
105New Division 3 inserted in Part 6
106Further limitations on issue of building permit
107Offence to work as building practitioner without required insurance
108Section 71 repealed
Division 2—Amendment to Victorian Civil and Administrative Tribunal Act 1998
109New clause 4JA inserted in Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998
Division 3—Amendment to Casino Control Act 1991
110Administration of Building Act
Division 4—Amendment to Architects Act 1991
111Grounds for disciplinary action against a registered architect
Division 5—Amendment to Criminal Procedure Act 2009
112New clause 3AA inserted in Schedule 2—Indictable offences that may be heard and determined summarily
Part 8—Repeal of amending Act
113Repeal of amending Act
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Endnotes
1 General information
Building Amendment (Enforcement and Other Measures) Act 2017
No. 21 of 2017
[Assented to 23 May 2017]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The main purposes of this Act are—
(a)to amend the Building Act 1993—
(i)to improve the enforcement of that Act; and
(ii)to provide for the further regulation of building practitioners; and
(iii)to reform the building permit process; and
(b)to amend the Domestic Building Contracts Act 1995 to further regulate entry into domestic building contracts; and
(c)to make consequential and other miscellaneous amendments to other Acts.
2Commencement
(1)This Part, Part 5 (except sections 77, 78, 83, 84 and 85), Part 7 (except Divisions 2 and 4), Part 8 and sections 21(2), 50(1), 56 and 103 come into operation on the day after the day on which this Act receives the Royal Assent.
(2)Subject to subsections (3) and (4), 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) (except Part 4 and Division 2 of Part 7) does not come into operation before 1 July 2018, it comes into operation on that day.
(4)If a provision of Part 4 or Division 2 of Part 7 does not come into operation before 1 July 2019, it comes into operation on that day.
Part 2—Registration of building practitioners
3Definitions
(1)In section 3(1) of the Building Act 1993 insert the following definitions—
"associate, in relation to a person, means a person who exercises a significant influence over the person or the operation or management of the person's business;
designated building surveyor has the meaning set out in section 80A(2);
domestic partner of a person means—
(a)a person who is in a registered domestic relationship with the person; or
(b)a person to whom the person is not married but with whom the person is living as a couple on a genuine domestic basis (irrespective of gender);
Energy Safe inspector means an inspector appointed under section 86 of the Gas Safety Act 1997;
Energy Safe Victoria has the same meaning as it has in the Energy Safe Victoria Act 2005;
excluded person has the meaning set out in section 171F;
nominee director, in relation to a body corporate, means a director of the body corporate nominated by the body corporate as a nominee director under Division 1A of Part 11;
registered body corporate means a body corporate registered as a building practitioner under this Act;
spouse of a person means a person to whom the person is married;
subsidiary, in relation to a body corporate, has the meaning set out in section 4A of the Competition and Consumer Act 2010 of the Commonwealth;".
(2)In section 3(1) of the Building Act 1993, for the definition of related body corporate substitute—
"related body corporate, in relation to a body corporate, means a body corporate that would under section 4A(5) of the Competition and Consumer Act 2010 of the Commonwealth be taken to be related to that body corporate;".
(3)After section 3(2) of the Building Act 1993 insert—
"(3)For the purposes of the definition of domestic partner in subsection (1)—
(a)registered domestic relationship has the same meaning as it has in the Relationships Act 2008; and
(b)in determining whether persons who are not in a registered domestic relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.".
4When may a private building surveyor be appointed?
(1)In section 78(1A) of the Building Act 1993, before "must not" insert ", or a related person to that builder,".
(2)After section 78(4) of the Building Act 1993 insert—
"(5)In this section—
related person, in relation to a builder, means—
(a)if the builder is a member of a partnership, another partner in the partnership; or
(b)if the builder is a body corporate, an officer of the body corporate.".
5Circumstances in which private building surveyor may not act
In section 79(4) of the Building Act 1993, for the definition of related person substitute—
"related person, in relation to a private building surveyor, means—
(a)if the private building surveyor is a member of a partnership, another partner in the partnership; or
(b)if the private building surveyor is a body corporate, a director of the body corporate or any related body corporate of the body corporate; or
(c)any employer of the private building surveyor; or
(d)any employee or contractor of the private building surveyor; or
(e)the spouse or domestic partner or a sibling, parent or child of the private building surveyor; or
(f)any person with whom the private building surveyor has a contractual arrangement that might reasonably be seen to give rise to a conflict between the private building surveyor's functions as a private building surveyor and the private building surveyor's interests under the arrangement.".
6New sections 80A and 80B inserted
After section 80 of the Building Act 1993 insert—
"80A Designated building surveyors
(1)This section applies if a registered body corporate accepts an appointment as a private building surveyor under this Part.
(2)The registered body corporate must ensure that the work as building surveyor is carried out by a director or employee of the body corporate (the designated building surveyor)—
(a)who is registered under Part 11 as a building surveyor as the case requires; and
(b)whose registration authorises the director or employee to carry out that work.
Penalty:1200 penalty units.
(3)The registered body corporate must within 7 days after accepting the appointment—
(a)notify the relevant council in writing of the designated building surveyor referred to in subsection (2); and
(b)give a copy of that notice to the person who appointed the registered body corporate under this Part.
Penalty:1200 penalty units.
( ) If the designated building surveyor notified to the relevant council is replaced by another director or employee of the body corporate for any period, the registered body corporate must within 7 days after the replacement is made—
(a)notify the relevant council in writing of the new designated building surveyor; and
(b)give a copy of that notice to the person who appointed the registered body corporate under this Part.
80BDuties of designated building surveyors
A designated building surveyor—
(a)is not excused from compliance with any duties under this Act and the building regulations or under any other Act in relation to any work as a building surveyor carried out by the designated building surveyor on behalf of the registered body corporate; and
(b)has the same functions in relation to the carrying out of the functions of a building surveyor on behalf of the registered body corporate as if the designated building surveyor were the private building surveyor.".
7New Division 1 of Part 11 substituted and Division 1A inserted
For Division 1 of Part 11 of the Building Act 1993 substitute—
"Division 1—Offences
169Representation in relation to registration
A person who is not registered in a particular category or class of building practitioner under this Part must not represent or imply that the person is registered in that category or class of registration.
Penalty:500 penalty units, in the case of a natural person;
2500 penalty units, in the case of a body corporate.
169ARepresentation in relation to domestic building work
A person who is not registered in a particular category or class of building practitioner under this Part must not represent or imply that the person is able to carry out domestic building work under a major domestic building contract of a kind authorised by that category or class of registration.
Penalty:500 penalty units, in the case of a natural person;
2500 penalty units, in the case of a body corporate.
169BRepresentation in relation to work as a building surveyor
A person who is not registered in a particular category or class of building surveyor under this Part must not represent or imply that the person is able to accept appointment as a building surveyor, or to carry out work as a building surveyor, of a kind authorised by that category or class of registration.
Penalty:500 penalty units, in the case of a natural person;
2500 penalty units, in the case of a body corporate.
169CRepresentation in relation to work as a building inspector
A person who is not registered in a particular category or class of building inspector under this Part must not represent or imply that the person is able to carry out work as a building inspector of a kind authorised by that category or class of registration.
Penalty:500 penalty units, in the case of a natural person;
2500 penalty units, in the case of a body corporate.
169DOffence to carry out work as building surveyor unless registered
(1)A person must not carry out work as a building surveyor unless—
(a)the person is registered under this Part as a building surveyor; and
(b)the person's registration authorises the person to carry out that work.
Penalty:500 penalty units, in the case of a natural person;
2500 penalty units, in the case of a body corporate.
(2)For the purposes of this Act, carrying out work as a building surveyor includes—
(a)carrying out functions as a municipal building surveyor; and
(b)carrying out work or functions as a private building surveyor; and
(c)carrying out any functions conferred on a building surveyor or relevant building surveyor under this Act or the building regulations or under any other Act or regulations.
(3)Subsection (1) does not apply to a person who is authorised under this Act or the building regulations to carry out work on behalf of a building surveyor.
169EOffence to carry out work as building inspector unless registered
A person must not carry out work as a building inspector unless—
(a)the person is registered under this Part as a building inspector; and
(b)the person's registration authorises the person to carry out that work.
Penalty:500 penalty units, in the case of a natural person;
2500 penalty units, in the case of a body corporate.
169FOffence for person to carry out certain building work unless registered
(1)A person must not carry out building work under a major domestic building contract unless the person is a registered builder.
Penalty:500 penalty units, in the case of a natural person;
2500 penalty units, in the case of a body corporate.
(2)Subsection (1) does not apply to an unregistered person who carries out domestic building work under, or in accordance with, a major domestic building contract if—
(a)the unregistered person carries out that work in partnership with a registered builder; or
(b)the unregistered person carries out that work as an employee of a registered builder in the course of the unregistered person's employment; or
(c)the unregistered person carries out that work as a subcontractor of a registered builder in accordance with a subcontract with the registered builder.
(3)If the registered builder in a partnership specified under subsection (2)(a) dies or becomes insolvent and work under the major domestic building contract remains to be carried out, the unregistered person specified in subsection (2)(a) may arrange for another registered building practitioner who is authorised by that registration to carry out work under that major domestic building contract to carry out that work.
(4)An unregistered person specified in subsection (3) does not commit an offence under subsection (1) because the unregistered person continues to carry out work under that major domestic building contract if an arrangement of a kind specified in subsection (3) has been made and the work is carried out in accordance with that arrangement.
(5)In this section—
registered builder means a person who carries out building work under a major domestic building contract and is—
(a)registered under this Part; and
(b)authorised by that registration to carry out that work;
unregistered person means a person who is not registered under this Part.
169GBuilding practitioner body corporate must have at least one nominee director
(1)A body corporate must not carry out work, or undertake to carry out work, as a registered building practitioner unless the body corporate has at least one nominee director who complies with the relevant requirements of section 171B.
Penalty:2500 penalty units.
(2)Subsection (1) does not prevent a body corporate from continuing and completing work in the period applying under section 180C(2) if the work commenced before the commencement of that period.
169HAdvertisements or written statements by registered building practitioners
A registered building practitioner who publishes or causes to be published an advertisement or written statement offering to carry out domestic building work must ensure that the advertisement or statement—
(a)states the name under which the building practitioner is registered; and
(b)states the registration number of the registered building practitioner; and
(c)complies with the requirements of the regulations.
Penalty:60 penalty units.
169IAdvertisements or written statements by partnerships
A registered building practitioner must not carry on business as a building practitioner in partnership with a person who is not a registered building practitioner unless each advertisement or written statement relating to that business—
(a)states the name under which the building practitioner is registered; and
(b)states the registration number of the registered building practitioner; and
(c)complies with the requirements of the regulations.
Penalty:60 penalty units.
169JException for certain organisations
(1)Sections 169A to 169F do not apply to—
(a)anything done in the course of official duties by—
(i)an employee under Part 3 of the Public Administration Act 2004; or
(ii)an officer or employee of the public service of the Commonwealth or a State or Territory of the Commonwealth other than Victoria; or
(iii)an officer or employee of a public authority established under a law of the Commonwealth or a State or Territory of the Commonwealth other than Victoria; or
(b)an organisation or a member of staff of an organisation for the time being exempted by the Authority.
(2)An exemption under subsection (1)(b) may be subject to conditions.
Division 1A—Registration
Subdivision 1—Application for registration
170Who may apply for registration?
An application for registration as a building practitioner may be made by—
(a)a natural person; or
(b)a body corporate.
170AApplication for registration—general
An application for registration must—
(a)be made to the Authority; and
(b)be in writing in a form approved by the Authority; and
(c)state each category or class of registration sought; and
(d)in the case of an application by a body corporate, state each nominee director of the body corporate; and
(e)be accompanied by the prescribed information (if any); and
(f)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.
170BAuthority may conduct inquiries and require further information
(1)In considering an application for a registration, the Authority may—
(a)conduct any inquiries in relation to the application that it thinks fit; and
(b)require an applicant to provide further information in relation to the application.
(2)The Authority may refuse an application for registration if the applicant fails to comply with a requirement under subsection (1)(b) within a reasonable time after the requirement is made.
170CConsent to disclosure of information
(1)In considering an application for registration, the Authority may ask the applicant to provide any consent to disclosure of information that the Authority requires to perform, or to have performed, a check on the applicant or on any information included with the applicant's application.
(2)The Authority may refuse to consider an application for registration if the applicant fails to comply with a request under subsection (1) within 14 days after the request is made.
(3)In this section, in the case of an applicant that is a body corporate, a reference to an applicant includes a reference to a director of the applicant.
170DChange to information in application
(1)An applicant for registration must—
(a)give the Authority notice of any material change during the relevant period to the information provided to the Authority by the applicant in support of the application for registration; and
(b)provide the notice referred to in paragraph (a) within 14 days after becoming aware of the change.
Penalty:60 penalty units, in the case of a natural person;
300 penalty units, in the case of a body corporate.
(2)In this section—
material change includes—
(a)a change of directors of an applicant that is a body corporate; or
(b)any change prescribed by the regulations;
relevant period means the period between the making of an application for registration and the determination of the application by the Authority.
Subdivision 2—Registration
171Registration
(1)The Authority must register an applicant as a building practitioner in a category or class if the Authority is satisfied that—
(a)if the applicant is a natural person, the applicant either—
(i)holds the prescribed qualification for the registration; or
(ii)unless the regulations otherwise provide in relation to a particular category or class, holds a qualification that the Authority considers is, either alone or together with any further certificate, authority, experience or examination equivalent to a prescribed qualification; and
(b)if the applicant is a body corporate, the requirements in sections 171A and 171B have been met; and
(c)if the applicant carries on business, or intends to carry on business, as a building practitioner as a member
of a partnership, the requirements in section 171C have been met; and
(d)the applicant is a fit and proper person to be registered having regard to—
(i)the personal probity requirements set out in section 171D; and
(ii)the financial probity requirements set out in section 171E; and
(e)the applicant is not an excluded person; and
(f)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
(g)the applicant meets any other prescribed requirements.
(2)The Authority must refuse an application for registration if it is not satisfied of the matters specified in subsection (1).
(3)The Authority is not required to conduct a hearing to determine whether to grant a registration or refuse to grant a registration.
171AAdditional requirements for registration—bodies corporate—general
(1)This section sets out additional requirements for registration where the applicant is a body corporate.
(2)The Authority must be satisfied that each director of the body corporate—
(a)is a fit and proper person having regard to—
(i)the personal probity requirements set out in section 171D; and
(ii)the financial probity requirements set out in section 171E; and
(b)is not an excluded person.
171BAdditional requirements for registration—nominee directors
(1)This section sets out further additional requirements for registration where the applicant is a body corporate.
(2)The Authority must also be satisfied in the case of an application for registration as a builder that the body corporate will have—
(a)a nominee director—
(i)who is registered under this Part as a builder; and
(ii)whose registration authorises the carrying out of building work for each class of registration sought; or
(b)two or more nominee directors—
(i)each of whom is registered under this Part as a builder; and
(ii)who between them have registrations under this Part that authorise the carrying out of building work for each class of registration sought.
(3)The Authority must also be satisfied in the case of an application for registration as a building surveyor that the body corporate will have—
(a)a nominee director—
(i)who is registered under this Part as a building surveyor; and
(ii)whose registration authorises the carrying out of work as a building surveyor for each class of registration sought; or
(b)two or more nominee directors—
(i)each of whom is registered under this Part as a building surveyor; and
(ii)who between them have registrations under this Part that authorise the carrying out of work as a building surveyor for each class of registration sought.
(4)The Authority must also be satisfied in the case of an application for registration as a building inspector that the body corporate will have—
(a)a nominee director—
(i)who is registered under this Part as a building inspector; and
(ii)whose registration authorises the carrying out of work as a building inspector for each class of registration sought; or
(b)two or more nominee directors—
(i)each of whom is registered under this Part as a building inspector; and
(ii)who between them have registrations under this Part that authorise the carrying out of work as a building inspector for each class of registration sought.
(5)The Authority must also be satisfied in the case of an application for registration
as a building practitioner (other than an application to which subsection (2), (3) or (4) applies) that the body corporate will have—
(a)a nominee director who is registered under this Part in the same class or classes of registration as the class or classes of registration sought; or
(b)two or more nominee directors each of whom is registered under this Part and who between them are registered in the same class or classes of registration as the class or classes of registration sought.
171CAdditional requirements for applicant who is member of partnership
(1)This section sets out additional requirements for registration where the applicant carries on business, or intends to carry on business, as a building practitioner as a member of a partnership.
(2)The Authority must be satisfied that each other member of the partnership—
(a)is a fit and proper person having regard to—
(i)the personal probity requirements set out in section 171D; and
(ii)the financial probity requirements set out in section 171E; and
(b)is not an excluded person.
171DPersonal probity requirements
For the purposes of this Part, the probity requirements are whether in the past 10 years—
(a)the person has been convicted or found guilty (whether in Victoria or outside Victoria) of any offence involving fraud, dishonesty, drug trafficking or violence that was punishable by imprisonment for 6 months or more; or
(b)the person has been convicted or found guilty of an offence under any law regulating building work or building practitioners; or
(c)the person has had any registration, licence, approval, certificate or other authorisation as a building practitioner suspended or cancelled for any reason other than a failure by the person to renew the registration, licence, approval, certificate or other authorisation; or
(d)the person has been convicted or found guilty of an offence against—
(i)section 10, 11, 12, 17, 19 or 21 of the Fair Trading Act 1999; or
(ii)section 53, 55, 55A, 56, 58 or 60 of the Trade Practices Act 1974 of the Commonwealth; or
(iii)section 29, 33, 34, 35, 36, 50, 151, 157, 158 or 168 of the Australian Consumer Law (Victoria); or
(iv)section 29, 33, 34, 35, 36, 50, 151, 157, 158 or 168 of Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth; or
(e)the person has been subject to an order of a court or VCAT under the following enactments that has not been complied with within the period required by the court or VCAT—
(i)this Act or the regulations; or
(ii)the Domestic Building Contracts Act 1995 or the regulations under that Act; or
(f)the person has failed to meet any other probity requirement prescribed by the regulations.
171EFinancial probity requirements
(1)For the purposes of this Part, the financial probity requirements are as follows—
(a)if the application is for registration as a builder in order to carry out domestic building work with a cost of more than the prescribed amount, whether the applicant is eligible to be covered by the required insurance in relation to managing, arranging or carrying out domestic building work with that cost;
(b)if the application is for any other category or class of registration, whether the applicant is covered by the required insurance;
(c)whether the person is or has been—
(i)an insolvent under administration; or
(ii)an externally administered body corporate within the meaning of the Corporations Act;
(d)whether the person has, is or has been disqualified from managing corporations under Part 2D.6 of the Corporations Act;
(e)whether an insurer has ever declined, cancelled, or imposed special conditions in relation to, the provision of professional indemnity insurance, public liability insurance or any other indemnity insurance in relation to the person in relation to work as a building practitioner in Victoria or in an equivalent occupation in the building and construction industry in another State or Territory;
(f)whether the applicant or, in the case of an applicant that is a body corporate, any director of the body corporate, has outstanding—
(i)any judgment debt for an amount recoverable by an insurer under a policy of insurance for domestic building work referred to in section 137A or 137B that has not been satisfied within the period required for satisfaction of that debt; or
(ii)any judgment debt for an amount owed to the Authority as a debt due under this Act that has not been satisfied within the period required for satisfaction of that debt; or
(iii)any judgment debt for an amount payable in relation to a domestic building dispute that has not been satisfied within the period required for satisfaction of that debt; or
(iv)any amount payable under any dispute resolution order (within the meaning of the Domestic Building Contracts Act 1995) or VCAT order requiring the payment of an amount in relation to a domestic building dispute that has not been paid within the period required for compliance with that order; or
(v)any unpaid adjudicated amount due to be paid under the Building and Construction Industry Security of Payment Act 2002 if—
(A)the period for making an adjudication review application under that Act in relation to that amount has expired; and
(B)the practitioner has not made an adjudication review application in relation to that amount within that period;
(g)whether the applicant is a director of a body corporate that has outstanding any judgment debt or unpaid amount referred to in paragraph (f);
(h)whether the applicant was a director of a body corporate that had outstanding any judgment debt or unpaid amount referred to in paragraph (f) at the time the applicant was a director;
(i)whether the person has failed to meet any other financial probity criteria prescribed by the regulations.
(2)In this section—
prescribed amount means—
(a)the amount prescribed by the regulations (if any); or
(b)if an amount is not prescribed, $16 000.
171FExcluded persons
(1)For the purposes of this Part, a person is an excluded person for registration as a building practitioner in a category or class (a relevant registration) if—
(a)the person is disqualified by an order of a disciplinary body from applying for the relevant registration; or
(b)the person previously held a relevant registration that was cancelled by a disciplinary body, if any period during which the person is disqualified from applying for a new relevant registration has not ended; or
(c)the person held a similar registration under a corresponding Act and—
(i)the similar registration was cancelled as a result of disciplinary action taken by a corresponding disciplinary body; and
(ii)either—
(A)any period during which the person is disqualified from applying for a new similar registration has not ended; or
(B)if the corresponding disciplinary body did not disqualify the person from applying for a new similar registration, a period of 2 years after the day the cancellation occurred has not ended; or
(d)the person's application for a relevant registration under this Act or a similar registration under a corresponding Act within the previous 2 years was refused on the basis that the person provided information or a document in relation to the application that was false or misleading; or
(e)an associate or related body corporate of the person is a person who or which held a relevant registration under this Act that was cancelled by a disciplinary body, if any period during which the associate or related body corporate is disqualified from applying for a new relevant registration has not ended; or
(f)an associate or related body corporate of the person held similar registration under a corresponding Act and—
(i)the similar registration was cancelled as a result of disciplinary action taken by a corresponding disciplinary body; and
(ii)either—
(A)any period during which the person is disqualified from applying for a new similar registration has not ended; or
(B)if the corresponding disciplinary body did not disqualify the person from applying for a new similar registration, a period of 2 years after the day the cancellation occurred has not ended; or
(g)the person is a represented person within the meaning of the Guardianship and Administration Act 1986; or
(h)the person is an excluded person for the relevant registration under the regulations.
(2)In this section—
corresponding Act means an Act or law of another jurisdiction that—
(a)relates to the registration or regulation of building practitioners; or
(b)is prescribed by the regulations as a corresponding Act;
corresponding disciplinary body means—
(a)a body in another jurisdiction that carries out similar functions to a disciplinary body in relation to the discipline of building practitioners; or
(b)a body that is prescribed by the regulations to be a corresponding disciplinary body for the purposes of this section;
disciplinary body means—
(a)the Authority; or
(b)the Building Practitioners Board (established under Part 11 as in force immediately before the commencement of Division 2 of Part 3 of the Building Legislation Amendment (Consumer Protection) Act 2016); or
(c)the Building Appeals Board; or
(d)VCAT;
similar registration
means a registration, licence, approval, certificate or other form of authorisation under a corresponding Act that corresponds
to a relevant registration.
171GIssue of certificate of registration
(1)If the Authority grants registration as a building practitioner to a person, it must issue a certificate of registration to that person.
(2)The certificate of registration issued must—
(a)be in a form approved by the Authority; and
(b)specify the registration number of the building practitioner; and
(c)contain the prescribed information.
171HConditions on registration
(1)The Authority—
(a)must impose on a registration any prescribed conditions; and
(b)may impose on a registration any other conditions that the Authority considers appropriate for the registration.
(2)A person must comply with any conditions imposed on the person's registration.
Penalty:50 penalty units, in the case of a natural person;
250 penalty units, in the case of a body corporate.
171IPeriod of registration
(1)Registration under this Part lasts for a period of up to 5 years as determined by the Authority.
(2)Subsection (1) does not take away from any provision about the suspension or cancellation of registration.
171JIssue of replacement certificate of registration
The Authority may issue a replacement certificate of registration at the request of the building practitioner if the building practitioner—
(a)pays the appropriate fee (if any)—
(i)determined in accordance with the guidelines under Division 1 of Part 12; or
(ii)prescribed by the regulations; and
(b)satisfies the Authority that the certificate of registration issued has been lost, damaged or destroyed.
Subdivision 3—Annual fee and proof of insurance
172Annual fee and proof of insurance
(1)A registered building practitioner must, on each anniversary of the practitioner's registration—
(a)pay to the Victorian Building Authority Fund the appropriate annual fee—
(i)determined in accordance with the guidelines under Division 1 of Part 12; or
(ii)prescribed by the regulations; and
(b)if, under Part 9, the applicant is required to be covered by insurance, give written proof to the Authority that—
(i)until the next anniversary of the registration or, subject to any conditions the Authority imposes, any lesser period approved by the Authority, the practitioner will be covered by the required insurance; or
(ii)to the extent that a builder is engaged in domestic building work with a cost that is more than the prescribed amount, the practitioner is eligible to be covered by the required insurance.
(2)In this section—
prescribed amount means—
(a)the amount prescribed by the regulations (if any); or
(b)if an amount is not prescribed, $16 000.
Subdivision 4—Renewal and surrender of registration
173Renewal and surrender of registration
(1)The Authority may grant a renewal of registration on the application of the registered building practitioner.
(2)An application for the renewal of registration must be made at least 3 months before the registration expires.
(3)This Division applies to a renewal of registration in the same manner as it applies to a registration.
(4)A prescribed qualification accepted under section 171 for the registration of a building practitioner is taken to be the appropriate prescribed qualification for the renewal of that registration.
(5)Without limiting subsection (1), in considering whether to grant a renewal of registration, the Authority may have regard to—
(a)whether the applicant has complied with any prescribed continuing professional development requirements; and
(b)whether the applicant complies with any other renewal criteria or conditions prescribed by the regulations.
(6)A building practitioner's registration is taken to be current despite the expiration date of the registration having passed if—
(a)the building practitioner applied for the renewal of the registration within the time specified in subsection (2); and
(b)a decision in relation to the renewal of the registration is not made by the Authority before the registration of the building practitioner would otherwise have expired but for this section.
(7)A registration continued under subsection (6) remains current until the Authority makes a decision in relation to the application for renewal of the registration under this section.
(8)A renewal of registration granted after a building practitioner's registration would otherwise have expired but for subsection (6) must include the period for which the building practitioner was taken to be registered.
173AAuthority may permit late renewals
(1)The Authority may renew the registration of a person even though the person did not apply for the renewal within the time required by section 173(2).
(2)However, the Authority may only do this if—
(a)the person pays the late renewal fee—
(i)determined in accordance with the guidelines under Division 1 of Part 12; or
(ii)prescribed by the regulations; and
(b)if the registration has expired, it is satisfied that—
(i)the person did not represent that the person was registered after the expiry of the person's registration; and
(ii)the person did not carry out building work under a major domestic building contract after the expiry of the person's registration; and
(iii)in the case of a building surveyor or building inspector, the person did not carry out work as a building surveyor or building inspector (as the case applies) after the expiry of the person's registration.
173BSurrender of registration
A registered building practitioner may, with the consent of the Authority, surrender the practitioner's registration.
Subdivision 5—Nominee directors
174General duty of nominee director
(1)A nominee director of a registered body corporate must ensure that the body corporate complies with the requirements of this Act and the regulations.
Penalty:500 penalty units.
(2)Nothing in subsection (1) affects the obligation on a body corporate to comply with the requirements of this Act and the regulations.
Subdivision 6—Register of Building Practitioners
175AADefinitions
In this Subdivision—
criminal proceeding means a proceeding for an offence against a relevant law;
criminal sanction means a conviction or finding of guilt in a criminal proceeding in relation to an offence under a relevant law and any penalty imposed for that offence;
disciplinary proceeding means—
(a)a proceeding under Subdivision 5 of Division 3; or
(b)a proceeding on an application for review under Division 4 of a decision under Subdivision 5 of Division 3;
disciplinary sanction means a decision in a disciplinary proceeding to cancel or suspend a registration or to take disciplinary action;
relevant law means—
(a)this Act or the regulations; or
(b)the Domestic Building Contracts Act 1995 and the regulations under that Act.
175The Register of Building Practitioners
(1)The Authority must keep a Register of Building Practitioners.
(2)The Register must—
(a)be in the form (if any) and contain the information (if any) required by the regulations; and
(b)include the names and categories and classes of registration of persons registered under this Part.
(3)The Register may include details of—
(a)any criminal sanction imposed on the registered person; and
(b)any disciplinary sanction imposed on the registered person.
175ATime for inclusion of information in the Register of Building Practitioners
(1)If, under section 175(2), the regulations require the details specified in section 175(3) to be included in the Register of Building Practitioners, the Authority must record that information in the Register as soon as practicable after the prescribed period after the criminal sanction or disciplinary sanction is imposed.
(2)Information about a disciplinary sanction is to remain on the register until the expiry of 5 years after the sanction is imposed or ceases to have effect, whichever is the later.
(3)Information about a criminal sanction is to remain on the register for 5 years after the sanction is imposed or ceases to have effect, whichever is the later.
(4)In this section—
prescribed period means—
(a)in the case of a disciplinary sanction, the later of the following to occur—
(i)the end of the period within which an application for review of the decision to impose a disciplinary sanction may be made to VCAT;
(ii)if an application for review of the decision to impose a disciplinary sanction is made to VCAT, a decision by VCAT affirming the decision; or
(b)in the case of a criminal sanction arising from a criminal proceeding, the later of the following to occur—
(i)the end of the period within which an appeal may be brought against the criminal sanction;
(ii)if an appeal is brought against the criminal sanction, a decision made dismissing the appeal.
175BChanges to information on the Register of Building Practitioners
(1)A registered building practitioner must give the Authority written notice of any change to the information required to be kept on the Register of Building Practitioners provided to the Authority within 14 days after the change occurs.
Penalty:10 penalty units, in the case of a natural person;
50 penalty units, in the case of a body corporate.
(2)The Authority must update the Register of Building Practitioners on receiving notification of any change of information under subsection (1).
175CAuthority to be advised of nominee director changes
A registered body corporate must give to the Authority written notice containing the prescribed information within 5 business days after the body corporate—
(a)ceases to have a nominee director; or
(b)changes a nominee director.
Penalty:1200 penalty units.
175DPublication of information on Register of Building Practitioners
(1)The Authority must publish on an Internet site maintained by the Authority the information on the Register of Building Practitioners that is required by the regulations to be published.
(2)The Authority may publish on an Internet site maintained by the Authority the information on the Register of Building Practitioners that is permitted by the regulations to be published.
Subdivision 7—General
176Certificate of registration to be returned to Authority
(1)The Authority may ask a person who holds a registration under this Division for the return of the certificate of registration—
(a)for the purpose of altering the details on the certificate of registration; or
(b)if the registration is suspended or cancelled; or
(c)for any purpose authorised by this Act or the regulations.
(2)A person who holds a registration under this Division must return the certificate of registration to the Authority as soon as is practicable after being asked to do so by the Authority under subsection (1).
Penalty:10 penalty units.
176ARegistered building practitioner to produce certificate of registration for inspection
A registered building practitioner or, in the case of a registered body corporate, the nominee director of the registered building practitioner must produce their certificate of registration for inspection if asked to do so by—
(a)any person—
(i)with whom the registered building practitioner has entered into a major domestic building contract; or
(ii)to whom the registered building practitioner has made a statement indicating that the practitioner is willing or prepared to enter into a major domestic building contract; or
(b)the owner or occupier of any land or building—
(i)on which building work is being carried out by the registered building practitioner; or
(ii)to which a major domestic building contract entered into by the registered building practitioner applies; or
(c)a private building surveyor in relation to any land or building—
(i)on which building work is being carried out by the registered building practitioner; or
(ii)to which a major domestic building contract entered into by the registered building practitioner applies; or
(d)a VBA inspector; or
(e)a plumbing inspector; or
(f)a compliance auditor; or
(g)a municipal building surveyor or a person authorised by a municipal building surveyor; or
(h)an Energy Safe inspector.
Penalty:10 penalty units.".
8Meaning of disciplinary action
(1)In section 178(d) of the Building Act 1993, for "100 penalty units" substitute "150 penalty units, in the case of a natural person, or 750 penalty units, in the case of a body corporate,".
(2)After section 178(g) of the Building Act 1993 insert—
"(ga)disqualify the practitioner from being a nominee director of a registered body corporate or a specified registered body corporate for a specified period not exceeding the period during which the body corporate is registered;
(gb)in the case of a registered body corporate, disqualify a registered building practitioner who is an officer of the body corporate from being a nominee director, or being otherwise involved in the management, of the body corporate for a specified period not exceeding the period during which the body corporate is registered;".
9Grounds for disciplinary action
After section 179(1)(h) of the Building Act 1993 insert—
"(ha)the practitioner is a body corporate and the practitioner has no nominee director;
(hb)the practitioner is a nominee director and the practitioner has failed to comply with a duty under section 174;
(hc)the practitioner has failed to comply with a direction under section 80D;".
10Grounds for immediate suspension
For section 180(e) of the Building Act 1993 substitute—
"(e)the practitioner is a body corporate and the practitioner has no nominee director; or
(f)the practitioner is an excluded person; or
(g)the practitioner has failed to comply with a condition of the practitioner's registration.".
11Consequential amendments
(1)In section 180A(1) of the Building Act 1993, for "The Authority may" substitute "Subject to section 180C, the Authority may".
(2)In section 188(5) of the Building Act 1993, for "Division 1" substitute "Division 1A".
12New section 180C inserted
After section 180B of the Building Act 1993 insert—
"180C Period of grace where director dies or resigns or is removed or disqualified
(1)This section applies if a registered building practitioner that is a body corporate no longer has any nominee director because a nominee director has—
(a)died; or
(b)resigned as director; or
(c)been removed as a director; or
(d)been disqualified from being a director under Part 2D.6 of the Corporations Act.
(2)The Authority must not suspend the registration of the body corporate under section 180A, or take any other disciplinary action, for the failure to have a nominee director unless the body corporate still has no nominee director at the end of 30 days or any longer period approved under subsection (3) after the death, resignation, removal or disqualification.
(3)The Authority, at the written request of the registered building practitioner, may approve a longer period for the purposes of subsection (2).
(4)The approval may be subject to any conditions the Authority thinks fit.".
13Application for licensing or registration as a plumber
Section 221T(2)(ba) of the Building Act 1993 is repealed.
14Section 221U substituted and new section 221UA inserted
For section 221U of the Building Act 1993 substitute—
"221U Authority may conduct inquiries and require further information
(1)In considering an application for a licence or registration, the Authority may—
(a)conduct any inquiries in relation to the application that it thinks fit; and
(b)require an applicant to provide further information in relation to the application.
(2)The Authority may refuse an application for a licence or registration if the applicant fails to comply with a requirement under subsection (1)(b) within a reasonable time after the requirement is made.
221UAConsent to disclosure of information
(1)In considering an application for a licence or registration, the Authority may ask the applicant to provide any consent to disclosure of information that the Authority requires to perform, or to have performed, a check on the applicant or on any information included with the applicant's application.
(2)The Authority may refuse to consider an application for a licence or registration if the applicant fails to comply with a request under subsection (1) within 14 days after the request is made.".
15New section 241A substituted
For section 241A of the Building Act 1993 substitute—
"241A Ineligibility for registration
(1)If a court finds an unregistered builder guilty of carrying out domestic building work in contravention of this Act or entering into a major domestic building contract in contravention of section 29 of the Domestic Building Contracts Act 1995, the court may, in addition to any penalty for that offence, direct that the builder is ineligible to apply for registration under Part 11 for not more than 3 years.
(2)If a court finds a body corporate that is an unregistered builder guilty of carrying out domestic building work in contravention of this Act or entering into a major domestic building contract in contravention of section 29 of the Domestic Building Contracts Act 1995, the court may, in addition to any penalty for that offence, direct that any officer of the body corporate is ineligible to apply for registration under Part 11 for not more than 3 years.
(3)If a court finds one or more members of a partnership guilty of carrying out domestic building work in contravention of this Act or entering into a major domestic building contract in contravention of section 29 of the Domestic Building Contracts Act 1995, the court may, in addition to any penalty for that offence, direct that each member of the partnership is ineligible to apply for registration under Part 11 for not more than 3 years.
(4)The Authority must comply with a direction under this section.".
16New section 243A inserted
After section 243 of the Building Act 1993 insert—
"243A Conduct by officers, employees or agents of bodies corporate
(1)If, in a proceeding under this Act in relation to conduct that is engaged in by a body corporate and to which this Act applies, it is necessary to establish the state of mind of the body corporate, it is sufficient to show—
(a)that an officer, employee or agent of the body corporate engaged in that conduct within the scope of the actual or apparent authority of the officer, employee or agent; and
(b)that the officer, employee or agent had that state of mind.
(2)The following conduct engaged in on behalf of a body corporate is also taken, for the purposes of this Act, to have been engaged in by the body corporate—
(a)conduct by an officer, employee or agent of the body corporate within the scope of the actual or apparent authority of the officer, employee or agent; or
(b)conduct by any other person—
(i)at the direction of an officer, employee or agent of the body corporate; or
(ii)with the consent or agreement (whether express or implied) of such an officer, employee or agent—
if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the officer, employee or agent.
(3)If, in a proceeding under this Act in relation to conduct that is engaged in by a person (the principal) other than a body corporate and to which this Act applies, it is necessary to establish the state of mind of the principal, it is sufficient to show—
(a)that an employee or agent of the principal engaged in that conduct within the scope of the actual or apparent authority of the employee or agent; and
(b)that the employee or agent had that state of mind.
(4)The following conduct engaged in on behalf of a person (the principal) other than a body corporate is also taken, for the purposes of this Act, to have been engaged in by the principal—
(a)conduct by an employee or agent of the principal within the scope of the actual or apparent authority of the employee or agent;
(b)conduct by any other person—
(i)at the direction of an employee or agent of the principal; or
(ii)with the consent or agreement (whether express or implied) of such an employee or agent—
if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent.
(5)A reference in this section 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.".
17Penalties for bodies corporate
(1)For the penalty at the foot of sections 30(1) and (1A), 37H(2), 73(1) and (1A), 93(3) and (5), 95(2), 101(1) and (2) and 125(1) of the Building Act 1993 substitute—
"Penalty:50 penalty units, in the case of a natural person;
250 penalty units, in the case of a body corporate.".
(2)For the penalty at the foot of sections 37H(1), 79(1) and 245(1) of the Building Act 1993 substitute—
"Penalty:500 penalty units, in the case of a natural person;
2500 penalty units, in the case of a body corporate.".
Part 3—Enforcement, building permits and building surveyors
18Definitions
(1)In section 3(1) of the Building Act 1993 insert the following definitions—
"direction to fix building work has the same meaning as it has in section 37;
lot affected by an owners corporation has the same meaning as it has in the Owners Corporations Act 2006;
owners corporation
has the same meaning
as it has in the Owners Corporations Act 2006;".
(2)In section 3(1) of the Building Act 1993 insert the following definition—
"VBA inspector means a person appointed under section 204A;".
(3)In section 37 of the Building Act 1993, for paragraphs (b) and (c) in the definition of authorised person substitute—
"(b)a VBA inspector;".
19New section 15B inserted
After section 15A of the Building Act 1993 insert—
"15B Maintenance of exits
(1)The Governor in Council may make regulations for or with respect to—
(a)keeping exits in buildings and places of public entertainment and paths of travel to and from exits maintained, accessible and free from obstruction; and
(b)requiring, testing or maintaining safety and emergency services, installations or equipment in buildings and places of public entertainment.
(2)Despite section 262(f), regulations made under subsection (1) may impose penalties not exceeding 100 penalty units for a contravention of those regulations.
(3)This section does not apply to a building that is a Class 1a or Class 10 building within the meaning of the Building Code of Australia.".
20Offences relating to carrying out building work
(1)For section 16(3) of the Building Act 1993 substitute—
"(3)An owner of land must ensure in relation to building work carried out on that land that a building permit in relation to the work has been issued and is in force under this Act.
Penalty:500 penalty units, in the case of a natural person;
2500 penalty units, in the case of a body corporate.".
(2)For section 16(4) of the Building Act 1993 substitute—
"(4)A building practitioner or an architect who is engaged to carry out building work must ensure that a building permit in relation to the work has been issued and is in force under this Act.
Penalty:500 penalty units, in the case of a natural person;
2500 penalty units, in the case of a body corporate.
(4A)A builder named in a building permit must ensure that the building work to which the building permit applies is carried out in accordance with this Act, the building regulations and the building permit.
Penalty:500 penalty units, in the case of a natural person;
2500 penalty units, in the case of a body corporate.".
(3)In section 16(6) of the Building Act 1993, for "and (4)" substitute ", (4) and (4A)".
21New sections 16A and 16B inserted
(1)After section 16 of the Building Act 1993 insert—
"16A Exception if permit suspended
(1)It is an exception to an offence under section 16(1), (3) or (4) if a building permit was not in effect because it was suspended under section 25AE and the accused at the time of the alleged offence—
(a)was not aware that an event mentioned in section 25AE(1) had occurred in relation to the building permit; and
(b)could not reasonably be expected to have known that the event had occurred.
(2)The exception in subsection (1) does not apply to the accused if the accused is an architect or a building practitioner who is engaged to carry out the building work to which the building permit applies.".
(2)At the end of Division 1 of Part 3 of the Building Act 1993 insert—
"16B Indictable offences relating to carrying out building work
(1)A person who is in the business of building must not carry out building work for which
a building permit is required if the person knows that—
(a)a building permit is required to carry out that work; and
(b)a building permit to carry out that work is not in force.
Penalty:600 penalty units or imprisonment for 5 years or both, in the case of a natural person;
3000 penalty units, in the case of a body corporate.
(2)An offence against subsection (1) is an indictable offence.
(3)A person who is in the business of building must not carry out building work if the person knows that the building work is not being carried out in accordance with—
(a)this Act; or
(b)the building regulations; or
(c)the building permit issued in relation to that work.
Penalty:600 penalty units or imprisonment for 5 years or both, in the case of a natural person;
3000 penalty units, in the case of a body corporate.
(4)An offence against subsection (3) is an indictable offence.
(5)Subsections (1) and (3) do not apply if the building work is exempted by or under this Act or the regulations.
(6)In this section—
person in the business of building includes a person who is in the business of managing or arranging the carrying out of building work.".
22Section 24A substituted and new section 24B inserted
For section 24A of the Building Act 1993 substitute—
"24A Further limitations on the issue of building permits
(1)The relevant building surveyor must not issue a building permit in relation to building work unless the relevant building surveyor is satisfied that—
(a)the building work is to be carried out by a builder who is specified under section 24B for that work; and
(b)the builder is named in the building permit; and
(c)in the case of building work carried out under a major domestic building contract—
(i)if the cost of the building work exceeds the prescribed amount, the following names are identical—
(A)the name of the person who is named as the builder in the contract;
(B)the name of the person specified as the builder in a certificate of insurance from the insurer providing the required insurance in relation to the building work; and
(ii)the major domestic building contract was entered into by a person entitled to do so under section 29 of the Domestic Building Contracts Act 1995; and
(d)in the case of a builder who is a body corporate, there is specified in the building permit the name of a natural person on whom directions, notices and orders under this Act directed to the body corporate can be served.
(2)The regulations may specify the manner
in which the relevant building surveyor
may be satisfied on the matters in
subsection (1)(c)(i).
(3)In subsection (1)(c)(i)—
prescribed amount means—
(a)the amount prescribed by the regulations (if any); or
(b)if an amount is not prescribed, $16 000.
24BSpecification of builders in relation to specific building work
(1)This section specifies builders for the purposes of section 24A(1)(a).
(2)If the cost of the building work does not exceed the prescribed amount for this subsection, the builder must be—
(a)a building practitioner; or
(b)the owner of the building or land in or on which the building work is to be carried out; or
(c)an architect who is registered under the Architects Act 1991.
(3)If the building work is not domestic building work and the cost of the building work exceeds the prescribed amount for subsection (2), the builder must be—
(a)a registered building practitioner; or
(b)the owner of the building or land in or on which the building work is to be carried out; or
(c)an insured architect.
(4)If the building work is domestic building work being carried out under a major domestic building contract, the builder must—
(a)be the builder who entered into that contract; and
(b)be registered under Part 11 and whose registration authorises the carrying out of the work.
(5)If the building work is domestic building work not being carried out under a major domestic building contract and the cost of the work exceeds the prescribed amount for subsection (2) but does not exceed the prescribed amount for section 25B, the builder must be the owner of the building or land in or on which the building work is to be carried out.
(6)If the building work is domestic building work not being carried out under a major domestic building contract and the cost of the work exceeds the prescribed amount for section 25B, the builder must be an owner referred to in section 25B of the building or land in or on which the work is being carried out.
(7)In this section, the cost of building work is the cost of that work estimated under Subdivision 4 of Division 2 of Part 12.
(8)In subsection (2)—
prescribed amount means—
(a)the amount prescribed by the regulations (if any); or
(b)if an amount is not prescribed, $5000.".
23New section 25A substituted and sections 25AB to 25AE inserted
For section 25A of the Building Act 1993 substitute—
"25A Notice of ending of engagement of builder
(1)This section applies if—
(a)a building permit is issued in relation to building work to be carried out by a building practitioner or an insured architect (the builder); and
(b)subsequently the engagement of the builder ends before completion of the building work.
(2)The builder or the owner of the building or land in or on which the building work is to be carried out may give a notice of the ending of the engagement to the relevant building surveyor.
Note
The effect of this notice is that the permit is suspended under section 25AE.
(3)A notice under subsection (2) may be in a form approved by the Authority (if any).
(4)For the purposes of section 25AE(1)(e), the day on which the engagement ceases is—
(a)the day on which the relevant building surveyor receives the first notice under subsection (2); or
(b)any later day specified in that notice.
25ABNotice to relevant building surveyor of subsequent engagement of builder
(1)This section applies if—
(a)a building permit is issued in relation to building work; and
(b)subsequently a building practitioner or insured architect (the builder) is engaged to carry out the building work.
(2)The owner of the building or land in or on which the building work is to be carried out may give the relevant building surveyor written notice of the engagement in accordance with subsection (3).
(3)A notice under subsection (2) must include—
(a)the name of the building practitioner and the building practitioner's registration number or the architect's name and registration number (as the case requires); and
(b)if the engagement is to carry out domestic building work and the cost of the work exceeds the prescribed amount, an extract of the contract showing the names of the parties to the contract and a certificate of insurance from the insurer providing the required insurance in relation to the building work; and
(c)any other prescribed details.
(4)In this section—
prescribed amount means—
(a)the amount prescribed by the regulations (if any); or
(b)if an amount is not prescribed, $16 000.
25ACChange of builder on building permit
On being notified under section 25AB, the relevant building surveyor may change the builder named on a building permit if the relevant building surveyor is satisfied that the builder complies with the relevant requirements of section 24A.
25ADRelevant building surveyor to notify Authority and relevant council of certain information
(1)The relevant building surveyor must give written notice to the Authority and the relevant council of the occurrence of each prescribed event and the prescribed information relating to that event which relates to—
(a)the building work to which a building permit applies; or
(b)the building permit.
(2)The notice must be given within the prescribed period after the relevant event.
(3)In this section—
prescribed period means the longer of—
(a)the period prescribed by the regulations (if any); or
(b)5 business days.
25AESuspension of building permit
(1)A building permit is suspended on and from the day on which—
(a)if the builder named in the building permit is a building practitioner, the building practitioner's registration as a building practitioner is suspended or cancelled; or
(b)if the builder named in the building permit is an architect, the architect's registration as an architect is suspended or cancelled under the Architects Act 1991; or
(c)the builder named in the building permit—
(i)dies; or
(ii)is imprisoned for an offence; or
(iii)has become a represented person within the meaning of the Guardianship and Administration Act 1986; or
(d)if the builder named in the building permit is an owner of land to whom a certificate of consent has been issued in respect of the building work, the certificate of consent is cancelled; or
(e)the builder named in the building permit has ceased to be engaged to carry out the building work to which the permit relates.
(2)A building permit ceases to be suspended under this section on the day on which a builder who complies with the relevant requirements of section 24A is named as the builder in the building permit.
(3)A building permit is of no effect under this Act during the period that it is suspended under this section.".
24Section 33 substituted
For section 33 of the Building Act 1993 substitute—
"33 Notification during building work
(1)The person that is named as the builder in a building permit issued for building work must ensure the relevant building surveyor is notified without delay of the completion of each mandatory notification stage of that work.
Penalty:120 penalty units, in the case of a natural person;
600 penalty units, in the case of a body corporate.
(2)The person that is named as the builder in a building permit issued for building work must ensure that any person who is carrying out the building work stops carrying out that work or any part of that work on completion of a mandatory notification stage if directed to do so by the relevant building surveyor.
Penalty:120 penalty units, in the case of a natural person;
600 penalty units, in the case of a body corporate.
(3)The relevant building surveyor must notify the Authority in the approved form (if any) of any failure of a person to comply with subsection (1) or (2).".
25Section 34 substituted and new sections 35A and 35B inserted
(1)For section 34 of the Building Act 1993 substitute—
"34 Inspections at mandatory notification stages
On being notified that a mandatory notification stage of building work for which a building permit has been issued under Part 3 has been completed, the relevant building surveyor must cause the building work to be inspected in person.".
(2)After section 35 of the Building Act 1993 insert—
"35A Record of inspection of building work
(1)On completion of an inspection under section 34 or 35, the relevant building surveyor must ensure that a record of the inspection containing the prescribed information is made.
(2)On receipt of a written request from any of the following persons, the relevant building surveyor must without delay give a copy of a record made under subsection (1) to that person—
(a)the Authority;
(b)the municipal building surveyor for the municipal district in which the building work was inspected;
(c)the owner of the building or land in or on which the building work was carried out;
(d)any other prescribed person.
35BPersons carrying out inspections must be registered practitioners or prescribed persons
The relevant building surveyor must not cause a person to carry out an inspection under section 34 or 35 on behalf of the relevant building surveyor unless—
(a)the person is registered as a building surveyor or a building inspector under Part 11 and the person's registration authorises the carrying out of that inspection; or
(b)in the case of an inspection that is of a prescribed class of inspection, the inspection is carried out by a person of a prescribed class of person.".
26Offences relating to compliance with direction
After section 37H(1) of the Building Act 1993 insert—
"(1A)A builder, to whom a written direction to fix building work has been given, must ensure that any other person engaged or employed by the builder who is carrying out the building work—
(a)carries out the building work in accordance with the direction; and
(b)if required by the direction, stops carrying out the building work in accordance with the direction.
Penalty:500 penalty units, in the case of a natural person;
2500 penalty units, in the case of a body corporate.".
27Notice to owner and Authority of non-compliance with direction
In section 37K(1) of the Building Act 1993, for "a direction" substitute "a written direction".
28New sections 78A and 78B inserted
After section 78 of the Building Act 1993 insert—
"78A Offence to accept appointment of private building surveyor if unregistered
A person must not accept an appointment as a private building surveyor unless—
(a)the person is registered under Part 11 as a building surveyor; and
(b)the person's registration authorises the person to carry out the work.
Penalty:500 penalty units, in the case of a natural person;
2500 penalty units, in the case of a body corporate.
78BPrivate building surveyor prohibited from delegating functions unless authorised
A private building surveyor must not delegate any function specified in section 76 or 77 to another person unless the delegation of the function is expressly authorised under this Act or the regulations.".
29New Division 1A of Part 6 inserted
After Division 1 of Part 6 of the Building Act 1993 insert—
"Division 1A—Transfer of functions of private building surveyor
80CA private building surveyor may transfer functions relating to building work to another building surveyor
(1)Subject to subsection (2), a private building surveyor (the transferring building surveyor) may transfer all functions under this Act or the building regulations that relate to building work in respect of which the transferring building surveyor has been appointed to another private building surveyor or a municipal building surveyor (the new relevant building surveyor).
(1)After section 205B(1)(c) of the Building Act 1993 insert—
"(ca)the costs and expenses of VCAT in relation to proceedings under this Act; and".
(2)In section 205B(4)(a) of the Building
Act 1993, for "subsection (1)(c)" substitute"subsection (1)(c) or (ca)".
83Council to administer building provisions in its municipal district
After section 212(1) of the Building Act 1993 insert—
"(1A)Subsection (1) is not limited if a private building surveyor is appointed to carry out any functions specified in section 76 or 77 in relation to a building or building work in the municipal district of that council.".
84Appointment of municipal building surveyor
In section 213 of the Building Act 1993, for "the person is registered as a building surveyor (unlimited)." substitute—
"the person—
(a)is a natural person; and
(b)is registered as a building surveyor under Part 11 and whose registration authorises the carrying out of work required for performing all the functions of a municipal building surveyor.".
85Section 216B substituted
For section 216B of the Building Act 1993 substitute—
"216B Delegation by municipal building surveyor
The municipal building surveyor of a council may, by instrument, delegate any of the municipal building surveyor's functions under this Act or the regulations to any person employed or engaged by the council who is registered as a building surveyor or a building inspector under Part 11 and whose registration authorises the carrying out of the work required for performing the functions to be delegated by the municipal building surveyor.".
86Role of municipal building surveyor outside municipal district
In section 216C(4)(a) of the Building Act 1993, for "79(1)," substitute "79(1), 79(1A),".
87People involved in a plumbing business need not be licensed or registered
For the penalty at the foot of section 221H(3) of the Building Act 1993 substitute—
"Penalty:50 penalty units.".
88Regulations
Section 221ZZZV(3) of the Building Act 1993 is repealed.
89Undertakings
(1)In section 234B(1) of the Building Act 1993 omit "power or".
(2)In section 234B(4)(b) of the Building Act 1993, for "building work or protection work" substitute "building work, protection work or plumbing work".
90New section 239A inserted
After section 239 of the Building Act 1993 insert—
"239A No proof required
(1)In any proceedings by or against or before the Authority or by or against a Registrar, no proof is required (until evidence is given to the contrary) of—
(a)the due constitution of the Authority; or
(b)any determination of the Authority; or
(c)the appointment of a Commissioner or a Registrar; or
(d)the presence of a quorum at a meeting of the VBA Board.
(2)In this section—
Registrar means the Registrar of the Victorian Building Authority or the Registrar of the Building Appeals Board.".
91New section 242A inserted
After section 242 of the Building Act 1993 insert—
"242A Offences by partners
If this Act or a regulation made under this Act provides that a builder is guilty of an offence and the builder is a partnership, the reference to the builder is taken to be instead a reference to each member of the partnership.".
92New sections 259BA and 259BB inserted
(1)After section 259B of the Building Act 1993 insert—
"259BA Certificate evidence—decisions of Authority and predecessor bodies
(1)A certificate purporting to be signed by the Registrar of the Authority and purporting to record a decision, resolution or determination of the Authority or a predecessor body is evidence of the making of the decision, resolution or determination recorded in the certificate.
(2)In this section, predecessor body means any of the following—
(a)the Building Practitioners Board established under Part 11 as in force immediately before the commencement of Division 2 of Part 3 of the Building Legislation (Consumer Protection) Act 2016;
(b)the Building Commission established under Part 12 as in force before 1 July 2013;
(c)the Director of Building Control within the meaning of the Building Control Act 1981;
(d)the Plumbing Industry Commission established under section 221ZZR as in force immediately before 1 July 2013;
(e)the Plumbing Industry Board established under Part 12A as in force immediately before 1 January 1999.".
(2)Before section 259C of the Building Act 1993 insert—
"259BB Certificate of Authority
A certificate of the Authority specifying—
(a)that a person is or is not registered on the Register of Building Practitioners; or
(b)the category or class of registration of a person—
is evidence and, in the absence of evidence to the contrary, proof of the matters stated in the certificate.".
93New section 274 inserted
After section 273 of the Building Act 1993 insert—
"274 Transitional and savings provisions relating to the Building Amendment (Enforcement and Other Measures) Act 2017
Schedule 10 has effect.".
94New Schedule 10 inserted
After Schedule 9 to the Building Act 1993 insert—
"Schedule 10—Transitional and savings provisions relating to the Building Amendment (Enforcement and Other Measures) Act 2017
Section 274
Part 1—Preliminary
1Definitions
In this Schedule—
amending Act means the Building Amendment (Enforcement and Other Measures) Act 2017;
appointed day means—
(a)in relation to clause 5, the day determined by the Authority for the purposes of clause 5 published in the Government Gazette and that is at least 28 days earlier than the relevant commencement day; and
(b)in relation to clause 6, the day determined by the Authority for the purposes of clause 6 published in the Government Gazette and that is at least 28 days earlier than the relevant commencement day;
new provision means a provision of this Act as in force on or after the relevant commencement day;
old provision means a provision of this Act as in force before the relevant commencement day;
relevant commencement day means the day on which section 7 of the amending Act comes into operation.
2General transitional provisions
(1)This Schedule does not affect or take away from the Interpretation of Legislation Act 1984.
(2)If this Part provides that an old provision continues to apply to any matter or thing, then any regulation or other instrument having effect for the purposes of that provision also continues to apply to that matter or thing.
(3)This Schedule applies despite anything to the contrary in this Act.
Part 2—Building practitioners
3Registration of body corporate builders—domestic building work
(1)This clause applies to a body corporate if—
(a)immediately before the relevant commencement day, the body corporate had at least one director holding a current registration of a category or class authorising the carrying out of domestic building work; and
(b)immediately before the relevant commencement day, the Authority held evidence from the designated insurer of the body corporate that the body corporate held a certificate of eligibility to hold the required insurance for the domestic building work referred to in paragraph (a); and
(c)the body corporate had in the period of 12 months immediately preceding the relevant commencement day carried out domestic building work under a major domestic building contract that was covered by the required insurance; and
(d)the Authority had not before the relevant commencement day received a report from the designated insurer of the body corporate providing that the body corporate is in a high risk insurance category; and
(e)the Authority had not before the relevant commencement day decided under clause 4 that the body corporate was not suitable to be registered under this clause; and
(f)the body corporate had not opted out of being registered under this clause in accordance with clause 5.
(2)On the relevant commencement day, the body corporate is taken to be a registered builder in the category or class authorising the carrying out of the domestic building work referred to in subclause (1)(a).
(3)The registration (unless sooner cancelled under this Act) expires on—
(a)the date of expiry of the registration under clause 10 of Schedule 8 of the director referred to in subclause (1)(a); or
(b)if more than one director is registered as referred to in subclause (1)(a), the date of expiry under clause 10 of Schedule 8 of the first of the registrations of those directors to expire (otherwise than by resignation or cancellation).
(4)If a body corporate is taken to be registered as a result of this clause, a director referred to in subclause (1)(a) is taken to be a nominee director of the body corporate.
(5)The registered body corporate may apply under Part 11 for the renewal of its registration.
4Authority may decide that body corporate not be registered under clause 3
(1)Before the relevant commencement day, the Authority may decide that on the relevant commencement day a body corporate must not be taken to be a registered builder under clause 3 if the Authority considers that the body corporate or a director of the body corporate is not a fit and proper person.
(2)A decision made by the Authority under subclause (1) is not reviewable by VCAT.
5Body corporate builders that opt out of being transitioned under clause 3
(1)This clause applies to a body corporate if—
(a)before the relevant commencement day, the body corporate had at least one director holding a current registration of a category or class authorising the carrying out of domestic building work; and
(b)before the relevant commencement day, the body corporate was carrying out domestic building work under a major domestic building contract and the body corporate had at least one director holding a current registration authorising the carrying out of the domestic building work under that contract; and
(c)the body corporate has notified the Authority by the appointed day that the body corporate opts out of being registered in accordance with clause 3.
(2)On the relevant commencement day, the body corporate may continue to carry out domestic building work under any major domestic building contract entered into before the relevant commencement date provided the body corporate continues to have a director holding a current registration authorising the carrying out of the work.
6Registration of other bodies corporate
(1)This clause does not apply to the registration of a body corporate to authorise the carrying out of domestic building work.
(2)This clause applies to a body corporate if—
(a)immediately before the relevant commencement day, the body corporate had at least one director who was registered as a building practitioner; and
(b)the Authority had not before the relevant commencement day decided under subclause (7) that the body corporate was not suitable to be registered under this clause; and
(c)the body corporate notified the Authority by the appointed day that the body corporate has elected to be registered in accordance with this clause.
(3)On the relevant commencement day, the body corporate is taken to be registered as a building practitioner in the category or class in which the director of the body corporate was registered.
(4)The registration (unless sooner cancelled under this Act) expires on—
(a)the date of expiry of the registration under clause 10 of Schedule 8 of the director referred to in subclause (2); or
(b)if more than one director is registered as referred to in subclause (2), the date of expiry under clause 10 of Schedule 8 of the first of the registrations of those directors to expire (otherwise than by resignation or cancellation).
(5)If a body corporate is taken to be registered as a result of this clause, a director referred to in subclause (2) is taken to be a nominee director of the body corporate.
(6)The registered body corporate may apply under Part 11 for the renewal of its registration.
(7)Before the relevant commencement day, the Authority may decide that on the relevant commencement day the body corporate
must not be taken to be registered under subclause (3) if the Authority considers that the body corporate or a director of the body corporate is not a fit and proper person.(8)A decision made by the Authority under subclause (7) is not reviewable by VCAT.
Part 3—Other transitional provisions
7Further limitations on the issue of building permits
(1)Section 24A as substituted by section 22 of the amending Act does not apply in relation to an application for a building permit that is accepted by the relevant building surveyor before the commencement of section 22 of the amending Act.
(2)Section 24A as in force immediately before the commencement of section 22 of the amending Act continues to apply in relation to an application for a building permit that was accepted by the relevant building surveyor before that commencement.
8Notice of ending of engagement of builder
(1)Section 25A as substituted by section 23 of the amending Act does not apply in relation to building work for which a permit was issued before the commencement of section 23 of the amending Act.
(2)Section 25A as in force immediately before the commencement of section 23 of the amending Act continues to apply in relation to building work for which a building permit was issued before that commencement.
9Notice to relevant building surveyor of subsequent engagement of builder
Section 25AB as inserted by section 23 of the amending Act does not apply in relation to building work for which a permit was issued before the commencement of section 23 of the amending Act.
10Relevant building surveyor to notify Authority and relevant council of certain information
Section 25AD as inserted by section 23 of the amending Act does not apply in relation to a building permit issued before the commencement of section 23 of the amending Act.
10ASuspension of building permit
Section 25AE as inserted by section 23 of the amending Act does not apply in relation to a building permit issued before the commencement of section 23 of the amending Act.
11Building orders to stop building work
Section 112 as amended by section 35 of the amending Act applies to a building order made before, on or after the commencement of section 35 of the amending Act.
12Relevant building surveyor must apply for building permit number for building permit
Section 18AA as inserted by section 58 of the amending Act does not apply in relation to an application for a building permit accepted by the relevant building surveyor before the commencement of section 58 of the amending Act.
13Authority must be notified of increased building costs
Section 205KA as inserted by section 69 of the amending Act does not apply in relation to building work for which a building permit was issued before the commencement of section 69 of the amending Act.
14Authority may reassess levy after building permit issued
Subdivision 4A of Division 2 of Part 12 as inserted by section 70 of the amending Act does not apply in relation to a building permit issued before the commencement of section 70 of the amending Act.
15Assessments of levy by the Authority for unauthorised building work
Subdivision 4B of Division 2 of Part 12 as inserted by section 70 of the amending Act applies in relation to building work carried out before, on or after the commencement of section 70 of the amending Act unless the carrying out of the building work relates to an offence against section 16(1) or 16B(1) for which a person was found guilty before the commencement of section 70 of the amending Act.
Part 4—General
16Regulations dealing with transitional matters
(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 amending Act, including any repeals and amendments made as a result of the enactment of that Act.
(2)Regulations made under this clause may have a retrospective effect to a day on or from a date not earlier than the date on which the amending Act receives the Royal Assent.
(3)Regulations made under this clause have effect despite anything to the contrary in any Act (other than this Act or the Charter of Human Rights and Responsibilities) or in any subordinate instrument.
(4)Sections 6 and 7 of the Subordinate Legislation Act 1994 do not apply to regulations made under this clause that expire on or before 1 July 2019.
(5)This clause is repealed on 1 July 2021.".
95Miscellaneous amendments
(1)In the note at the foot of section 24(4) of the Building Act 1993, for "of the of the" substitute "of the".
(2)In section 25G(2) of the Building Act 1993, in paragraph (a) of the definition of prescribed period, for "the prescribed" substitute
"the prescribed period".
(3)In section 37B(3) of the Building Act 1993,
for "to to" substitute "to".
(4)In section 72(b) of the Building Act 1993,
for "the use stated" substitute "the proposed use specified".
(5)In section 81(2) of the Building Act 1993 omit "municipal".
(6)In section 141(d) of the Building Act 1993,
for "requirement" substitute "request".
(7)In section 180A(1) of the Building Act 1993,
for "section 180(1)" substitute "section 180".
(8)In section 188(1)(d) of the Building Act 1993,
for "Chief Fire Officer of the Metropolitan
Fire Brigades under the Metropolitan Fire Brigades Act 1958, the Chief Officer under the Country Fire Authority Act 1958" substitute "chief officer".
(9)In section 205A(1)(h) of the Building Act 1993, after "other Act" insert "or the regulations".
(10)For the penalty at the foot of section 221ZZC(1) of the Building Act 1993 substitute—
"Penalty:60 penalty units, in the case of a natural person;
120 penalty units, in the case of a body corporate.".
(11)In section 221ZZZD of the Building Act 1993—
(a)in subsection (1), for "GASCOR" substitute "a gas company";
(b)in subsection (2), for "GASCOR" substitute "The gas company";
(c)after subsection (3) insert—
"(4)In this section gas company has the same meaning as it has in section 3(1) of the Gas Safety Act 1997.".
(12)In section 221ZZZDA of the Building Act 1993, in paragraph (a) of the definition of authorised officer, for "Plumbing Industry Commissioner" substitute "chief executive officer of the Authority".
(13)In section 261(1)(m) of the Building Act 1993, for "requests and appeals" substitute "requests, appeals and reviews".
(14)Section 272A of the Building Act 1993 is repealed.
(15)After section 272 of the Building Act 1993 insert—
"272A Schedule 9—House Contracts Guarantee Repeal Act 2016
Schedule 9 has effect.".
(16)For clause 13(3)(c) of Schedule 3 to the Building Act 1993 substitute—
"(c)in the case of an application for a modification of a provision of the building regulations that relates to a building or land on the Victorian Heritage Register under the Heritage Act 1995, the Heritage Council; and".
(17)In clause 15(2) of Schedule 3 to the Building Act 1993, after "1958" insert ", as in force immediately before their repeal,".
(18)In clause 15(3)(b) of Schedule 3 to the Building Act 1993, for "fits" substitute "fit".
96References to Tribunal
(1)In sections 25J and 137B(1)(c) of the Building Act 1993, for "the Victorian Civil and Administrative Tribunal" substitute "VCAT".
(2)In section 205B(1)(d) of the Building Act 1993, for "the Victorian Civil and Administrative Appeals Tribunal" substitute "VCAT".
(3)In section 221ZW(7) of the Building Act 1993, for "the Tribunal" substitute "VCAT".
(4)In sections 221ZW(7), 221ZX(1) and 221ZZE(1) of the Building Act 1993, for "the Victorian Civil and Administrative Tribunal" substitute "VCAT".
(5)In section 221ZZE(3) and (4) of the Building Act 1993, for "the Tribunal" substitute "VCAT".
(6)In sections 221ZZN(7), (8)(b) and (9), and 221ZZZP(1), (2) and (3) of the Building Act 1993, for "the Victorian Civil and Administrative Tribunal" substitute "VCAT".
97References to the Victorian Building Authority
In sections 221E(3) and 221F(2) of the Building Act 1993, for "Board" substitute "Authority".
98Suspension of licence where failure to comply with insurer's direction
In section 221ZV(5) of the Building Act 1993,
for "Plumbing Industry Authority" substitute "Authority".
99Updating of references
In sections 8(3), 19(3), 24(1)(b), 43(3), 56(3), 81(3), 83, 85(2), 86, 88(1)(a), 95(1)(b), 116(3), 214(2) and (3), 215(2)(a), 223(3), 236(5) and 251(4) and (5) of, and clauses 6(2) and 6A(3) and (4) of Schedule 2 to, the Building Act 1993, for "deemed" (wherever occurring) substitute "taken".
100Repeal of redundant provisions
(1)Sections 137A(3) and 137B(5A) of the Building Act 1993 are repealed.
(2)In section 137B(1) of the Building Act 1993—
(a)in paragraph (d), for "applies; or" substitute "applies.";
(b)paragraph (e) is repealed.
(3)In section 137E of the Building Act 1993—
(a)in paragraph (a), for "contract; or" substitute "contract.";
(b)paragraph (b) is repealed.
(4)Sections 266 and 268 of the Building Act 1993 are repealed.
(5)Clauses 4, 6, 9, 16, 18(2), 20, 23 and 24 of Schedule 4 to the Building Act 1993 are repealed.
(6)Clauses 1(1) and (2), 2, 3 and 4 of Schedule 6 to the Building Act 1993 are repealed.
(7)Clauses 4, 5, 13(1) and 19 of Schedule 7 to the Building Act 1993 are repealed.
Part 6—Amendments to Domestic Building Contracts Act 1995
101New section 29 substituted
For section 29 of the Domestic Building Contracts Act 1995 substitute—
"29 Person must not enter into contract unless registered
(1)A person must not enter into a major domestic building contract to carry out domestic building work for another person unless—
(a)the person is a registered building practitioner; and
(b)the person's registration authorises the person to carry out the work.
Penalty:500 penalty units, in the case of a natural person;
2500 penalty units, in the case of a body corporate.
(2)A person must not on behalf of a partnership enter into a major domestic building contract to carry out domestic building work for another person unless—
(a)the person is a member of the partnership; and
(b)the person is a registered building practitioner; and
(c)the person's registration authorises the person to carry out the work.
Penalty:500 penalty units, in the case of a natural person;
2500 penalty units, in the case of a body corporate.
(3)A person who enters into a major domestic building contract in contravention of this section is not entitled to consideration under the contract unless the amount claimed—
(a)is not more than the amount of the costs reasonably incurred by the person in supplying materials and labour for carrying out work under the contract; and
(b)does not include—
(i)an amount for the supply of the person's own labour; or
(ii)an amount of profit by the person for carrying out work under the contract; and
(c)is not more than the builder would have been entitled to recover for carrying out work under the contract; and
(d)does not include any amount paid by the person that is for the person's own direct or indirect benefit.
(4)A person may recover from another person in a court of competent jurisdiction, as a debt due to the person, any amount the person paid to the other person in respect of anything the other person did in contravention of subsection (1) or (2).
(5)In this section and section 31—
registered building practitioner means a building practitioner registered under Part 11 of the Building Act 1993.
Note
See section 241A of the Building Act 1993 which provides that a failure to comply with this section may make a builder ineligible for registration under Part 11 of that Act for up to 3 years.".
102General contents etc. of a contract
For section 31(1)(f) of the Domestic Building Contracts Act 1995 substitute—
"(f)states the registration number under the Building Act 1993 of the registered building practitioner who entered into the contract; and
(fa)if a registered building practitioner has entered into the contract on behalf of a partnership, states—
(i)the names and addresses of each other member of the partnership; and
(ii)the registration number of each other member of the partnership who is a registered building practitioner; and
(fb)if the builder is a corporation or a foreign company, states the ACN or ARBN of
the corporation or foreign company
(as appropriate); and".
103Breach of dispute resolution order notice
In section 49U(5) of the Domestic Building Contracts Act 1995, for "given" substitute "give".
Part 7—Amendments to other Acts
Division 1—Amendments to Building Legislation Amendment (Consumer Protection) Act 2016
104New section 40A inserted
After section 40 of the Building Legislation Amendment (Consumer Protection) Act 2016 insert—
'40A Directions of Authority
In section 82(1)(b) of the Building Act 1993, after "81(3)" insert "or 83H(3)".'.
105New Division 3 inserted in Part 6
(1)In section 41 of the Building Legislation Amendment (Consumer Protection) Act 2016, for "Principal Act" substitute "Building Act 1993".
(2)In section 41 of the Building Legislation Amendment (Consumer Protection) Act 2016, for proposed new section 83H(1)(a) and (b) of the Building Act 1993 substitute—
"(a)carry out work under any existing appointment of the private building surveyor under Division 1; and
(b)accept appointment as a private building surveyor and carry out work as a building surveyor on behalf of the business; and".
(3)In section 41 of the Building Legislation Amendment (Consumer Protection) Act 2016, for proposed new section 83H(2) of the Building Act 1993 substitute—
"(2)The manager of a private building surveyor's business may not act as a private building surveyor for a person who appointed the private building surveyor under Division 1 unless the consent of that person has been obtained.
(3)If a person refuses consent under subsection (2), the appointment of the private building surveyor by the person is taken to be terminated.".
(4)In section 41 of the Building Legislation Amendment (Consumer Protection) Act 2016, in proposed new section 83I(1) of the Building Act 1993—
(a)in paragraph (a) for "client" substitute "person";
(b)in paragraph (b)—
(i)for "clients" substitute
"the appointment";
(ii)for "client matters" substitute
"the appointment of the private
building surveyor".
(5)In section 41 of the Building Legislation Amendment (Consumer Protection) Act 2016, for proposed new section 83T(2)(e) of the Building Act 1993 substitute—
"(e)a person who has at any time appointed the private building surveyor under Division 1 if the information relates to that person;".
(6)In section 41 of the Building Legislation Amendment (Consumer Protection)
Act 2016, for the note at the foot of proposednew section 83V(2) of the Building Act 1993 substitute—
'Note
Under section 83H(2) a person who appointed a private building surveyor must consent to the manager completing the work for which the private building surveyor was appointed.".'.
106Further limitations on issue of building permit
Section 46(1) and (3) of the Building Legislation Amendment (Consumer Protection) Act 2016 are repealed.
107Offence to work as building practitioner without required insurance
In section 52 of the Building Legislation Amendment (Consumer Protection) Act 2016, in proposed new section 136(3) of the Building Act 1993 omit "and registration number" (where twice occurring).
108Section 71 repealed
Section 71 of the Building Legislation Amendment (Consumer Protection) Act 2016
is repealed.
Division 2—Amendment to Victorian Civil and Administrative Tribunal Act 1998
109New clause 4JA inserted in Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998
In Part 2B in Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 before clause 4K insert—
"4JA Costs for proceedings under section 25BF
(1)In determining a proceeding under section 25BF of the Building Act 1993, the Tribunal may order the Victorian Building Authority (within the meaning of that Act)
to pay the costs of the applicant if—
(a)the review relates to a refusal of the Authority under section 25BC(2) of that Act to issue a building permit number (within the meaning of that Act); and
(b)the Tribunal is satisfied that the Authority did not have reasonable grounds for refusing to issue the building permit number.
(2)The power of the Tribunal under subclause (1) is additional to the Tribunal's power to make an order for costs under section 109(2).
(3)Section 109(6) applies to an order made under this clause as if it were made under section 109(2).".
Division 3—Amendment to Casino Control Act 1991
110Administration of Building Act
Section 128E(3) of the Casino Control Act 1991 is repealed.
Division 4—Amendment to Architects Act 1991
111Grounds for disciplinary action against a registered architect
After section 32(d) of the Architects Act 1991 insert—
"(da)the architect has breached or failed to comply with section 16(4) of the Building Act 1993; or
(db)the architect who is a builder named in a building permit has breached or failed to comply with section 16(4A) of the Building Act 1993; or".
Division 5—Amendment to Criminal Procedure Act 2009
112New clause 3AA inserted in Schedule 2—Indictable offences that may be heard and determined summarily
After clause 3 of Schedule 2 to the Criminal Procedure Act 2009 insert—
"3AA Building Act 1993
3AA.1Indictable offences under the Building Act 1993.".
Part 8—Repeal of amending Act
113Repeal of amending Act
This Act is repealed on 1 July 2020.
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: 7 December 2016
Legislative Council: 9 March 2017
The long title for the Bill for this Act was "A Bill for an Act to amend the Building Act 1993 to improve the enforcement of that Act, to provide for the further regulation of building practitioners and to reform the building permit process and to amend the Domestic Building Contracts Act 1995 to further regulate entry into domestic building contracts, to make consequential and other miscellaneous amendments to other Acts and for other purposes."
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