Thursday, 12 September 2024

Building Legislation Amendment and Other Matters Bill 2024

Statement of compatibility

Sonya KILKENNY (Carrum – Minister for Planning, Minister for the Suburbs) (10:35): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Building Legislation Amendment and Other Matters Bill 2024:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Building Legislation Amendment and Other Matters Bill 2024.

In my opinion, the Building Legislation Amendment and Other Matters Bill 2024 (the Bill), as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.

Overview of the Bill

The purpose of the Bill is to amend the Building Act 1993 (Building Act), the Architects Act 1991 (Architects Act) and the Victorian Planning Authority Act 2017 (VPA Act).

The Bill amends the Building Act to, among other things:

• give municipal and other relevant building surveyors additional powers to issue building notices and building orders so that building work is compliant, and that buildings and places of public entertainment are safe;

• enable circumstances to be prescribed in respect of which a relevant building surveyor must not issue a building permit;

• provide that a property owner who is required to carry out protection work may request an adjoining owner’s name and address from a council for the purpose of serving a notice regarding that protection work;

• amend the limitation periods on the right to bring legal actions in relation to building or plumbing work in the Building Act to ensure the limitation periods are subject to recently amended powers in the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) enabling courts to extend those periods in certain circumstances;

• insert new offences for incorrect uses of compliance certificates for plumbing work; and

• insert additional regulation-making powers, including powers for prohibiting, and prohibiting a person from carrying out plumbing work in connection with, certain connections to reticulated gas, extensions to the capacity of existing reticulated gas connections, the installation and replacement of certain reticulated gas appliances.

The Bill also amends the Architects Act to support the effectiveness of the Architects Registration Board of Victoria (ARBV) by requiring annual renewal of approvals of partnerships or companies and annual renewal of architect registrations, including submission of annual declarations that registered architects are ‘fit and proper’ to continue their registered practice. The amendments also clarify the powers to prescribe fees charged by the ARBV.

Finally, the Bill amends the VPA Act to implement a recommendation of the Independent Broad-based Anti-corruption Commission to extend the period in which a proceeding for a summary offence under Division 4 of Part 2 of the VPA Act may be commenced, from 12 months to up to 3 years from the date of the alleged offence.

Human rights issues

The human rights protected by the Charter that are relevant to the Bill are the right to privacy in section 13(a), the right to freedom from forced work in section 11, the right to property in section 20 and the right to a fair hearing in section 24(1).

Right to privacy (s 13)

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

Proposed sections 84A and 84B of the Building Act

Clause 3 of the Bill inserts new section 84A into the Building Act, allowing a property owner who is required to serve a notice of proposed building work on the owner of an adjoining property to, after having taken reasonable steps to obtain the name and address of the owner of the adjoining property, make a written request to the relevant council to obtain this information. New section 84B allows the council receiving the request under section 84A to disclose the requested information if satisfied that the person will use the information for the purpose of serving the notice of proposed building work on the owner of the adjacent property.

In my opinion, new section 84B does not limit the right to privacy as protected by section 13 of the Charter because any interference is lawful and not arbitrary. Allowing councils to release personal information for the limited purpose of serving a notice serves the legitimate purpose of facilitating the service of building works notices on persons affected by the proposed work and potentially subject to any risks associated with that work. The release of this information is also reasonably necessary to, in said circumstances, allow a property owner that is legally required to serve the notice of proposed building work on the relevant adjacent property, to fulfil their obligations under the protective regime set out in the Building Act. In my view, section 84B is appropriately circumscribed so as to only allow disclosure of necessary, and limited, personal information to a property owner, where satisfied that the property owner will use the information for the specified purpose. Accordingly, the provision of the personal information in the prescribed circumstance is not arbitrary nor unlawful and I am satisfied that these provisions are compatible with the Charter.

Proposed sections 221ZZZV(1)(fa) and (fb) of the Building Act

Clause 38 of the Bill inserts new paragraphs (fa) and (fb) in section 221ZZZV(1) of the Building Act. Section 221ZZZV(1) provides for the matters in respect of which the Governor in Council may make regulations under the Building Act. New paragraphs (fa) and (fb) insert powers to make regulations for or with respect to prohibiting a person from engaging in a range of conduct relating to the connection and installation of reticulated gas and gas appliances.

It is an open question whether a person’s right to privacy of home and property extends to freedom of choice in relation to connection and installation of such services and appliances. It is further arguable that such prohibitions may interfere with components of the privacy right that protect an individual’s right to pursue work, free from restriction, in their chosen field of employment to which they possess qualifications, such as gas plumbing.

To the extent that the Bill providing the legislative basis for such regulations engages such rights, it does so for legitimate purposes, being measures necessary to realise the Government’s legislated objectives to halve emissions by 2030, accelerate the decarbonisation of energy and protect consumers from a projected shortfall in gas supply.

Further, the nature and extent of any interference with rights will be determined by the content of any future Regulations, which will be subject to the requirement for the Minister to prepare a human rights certificate justifying any limitations on human rights. Accordingly, I am satisfied that these provisions are compatible with the Charter.

Proposed section 15C of the Architects Act

Clause 52 of the Bill amends the Architects Act to require that every year, when an architect applies for renewal of registration, the architect must give a written statement to the ARBV declaring that they remain a fit and proper person to continue practice as an architect, having regard to the probity matters set out in existing section 10A of the Architects Act. Presently, the fit and proper person consideration only applies when an applicant initially seeks registration as an architect.

As the statement must have regard to the factors set out in section 10A of the Architects Act (which includes the applicant’s criminal history and professional history, such as whether the person has been the subject of a Victorian Civil and Administrative Tribunal or court order under specified building legislation), the expansion of this requirement may constitute an increased interference with privacy. The privacy right may also be engaged by the provisions allowing the ARBV to require applicants for renewal or reinstatement to provide further information or material which may be personal in nature.

In my opinion, these provisions are not unlawful or arbitrary. The purpose of the provisions is to provide the ARBV with the ability to assess whether a registered architect remains fit to continue practising as a registered architect and to improve public confidence in registered architects. The personal information required to accompany applications for renewal or reinstatement of registration is limited to what is strictly necessary for, or relevant to, the determination of the architect’s suitability to practise as a registered architect. Additionally, as architects are already required to provide the required personal information when initially applying to the ARBV for registration or approval (as part of the special responsibilities and duties that apply to persons undertaking this regulated role), there is unlikely to be a reasonable expectation of privacy regarding the provision of this information on the renewal or reinstatement of registration or an approval. Accordingly, I am satisfied that these provisions are compatible with the Charter.

Based on the above discussion, I consider the right to privacy in section 13 of the Charter is not limited by this Bill.

Freedom from forced work (s 11) and the right to property (s 20)

Clauses 5 and 6 of the Bill amend sections 108 and 111 of the Act, to empower a municipal or private building surveyor to serve a building notice, and subsequently a building order, on an owner if the surveyor is of the opinion that the owner’s building, land or place of public entertainment, or building work that is being or is proposed to be carried out on the building, land or place, is a danger to the life, safety or health of any member of the public or of any person using the building, land or place or to any property. Under the new provisions, a building surveyor can make a building order to require the owner to take such action that the surveyor considers necessary to remove or to wholly or partially reduce, or to contribute to removing or to wholly or partially reducing, the circumstance giving rise to that danger. The purpose of these new powers is to ensure that buildings, land, places of public entertainment and building work (as the case requires) are safe for the public, users and property.

Clause 7 substitutes section 113 of the Building Act. New section 113(1) provides that building orders requiring an owner to carry out building work of a minor nature may be made if a municipal or private building surveyor is of the opinion that a circumstance referred to in section 106 of the Building Act exists. New section ‍113(2) provides that a building order requiring an owner to take certain action that is necessary and of a minor nature, may be made, if a municipal or private building surveyor is of the opinion that the owner’s building, land or place of public entertainment, or building work that is being or is proposed to be carried out on the building, land or place is a danger to the life, safety or health of any member of the public or of any person using the building, land or place or to any property, that the action is necessary to remove or to wholly or partially reduce or to contribute to removing or to wholly or partially reducing that circumstance and that the necessary action is of a minor nature.

Section 11 of the Charter provides that a person must not be made to perform forced or compulsory labour. The protection against compulsory labour in section 11 of the Charter is limited in scope and does not apply to work or service that forms part of a person’s normal civil obligations. This has been interpreted as including an owner’s obligation to maintain their building in accordance with regulations. Further, an owner may engage another person to do the work. As such, clauses 6 and 7 of the Bill do not limit section 11 of the Charter.

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. This right requires that powers that authorise the deprivation of property are conferred by legislation or common law, are confined and structured rather than unclear, are accessible to the public and are formulated precisely.

It is possible that a building order issued under sections 111 or 113 may result in the deprivation of property or interfere with a person’s enjoyment of their property rights. However, as any deprivation of property will only occur in the limited circumstances specified in the provisions, and for the purposes of properly regulating building owners and the building industry and protecting the safety of people using a building or doing building work, any such deprivation will not be unlawful.

As such, I conclude that the right to freedom from forced work in section 11 and the right to property in section 20 of the Charter are not limited by this Bill.

Right to a fair hearing (s 24)

Section 24(1) of the Charter relevantly provides that a party to a civil proceeding has the right to have the proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The right may be limited if a person faces a procedural barrier to bringing their case before a court, or where procedural fairness is not provided.

Clauses 8 and 9 of the Bill amend sections 134 and 134A of the Building Act so as to enable the extension of the time period during which a legal action in relation to building work or plumbing work may be brought after the date of issuance of an occupancy permit or certificate of final inspection in respect of building work, or a compliance certificate in respect of plumbing work. New section 134(2A) provides that a building action may be brought more than 10 years after the date of issue of the occupancy permit in respect of the building work (whether or not the occupancy permit is subsequently cancelled or varied) or, if an occupancy permit is not issued, the date of issue under Part 4 of the Building Act of the certificate of final inspection of the building work if a court extends the 10 year limitation of action period that would otherwise apply in accordance with section 77 of the VCAT Act. Similarly, new section 134A(2) provides that if a compliance certificate is issued in respect of plumbing work under Part 12A of the Building Act, a legal action (including a counter claim) for damages for loss or damage arising out of or concerning any defects in the work can be brought more than 10 years after the date of issue of the certificate if a court extends the 10 year limitation of action period that would otherwise apply in accordance with section 77 of the VCAT Act.

As these amendments have the effect of enabling a court to, in accordance with section 77 of the VCAT Act, extend the time period within which a person must bring a legal action in relation to building or plumbing work, the right to a fair hearing, which is concerned with procedural fairness, is promoted by removing what would otherwise be a procedural barrier to bring the claim after 10 years.

Conclusion

I am therefore of the view that the Bill is compatible with the Charter.

The Hon Sonya Kilkenny MP

Minister for Planning

Second reading

Sonya KILKENNY (Carrum – Minister for Planning, Minister for the Suburbs) (10:35): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The Victorian government is developing a suite of reforms to Victoria’s building system to ensure that Victorians can build, renovate or buy a home with the confidence that they will get what they paid for – an affordable, safe and comfortable home.

This Bill precedes future reforms that will progressively reshape Victoria’s building system to strengthen consumer protections and improve oversight of new builds. It makes necessary amendments to support Victoria’s Gas Substitution Roadmap, clarifies enforcement powers under the Building Act 1993 and makes several miscellaneous improvements to the efficiency and operation of building legislation and other Acts amended by this Bill.

Legislative changes

The Bill will amend the Building Act 1993 to:

• support implementation of key components of the Gas Substitution Roadmap;

• clarify the scope of a building surveyor’s power to issue building orders;

• ensure courts can extend the limitations period for building and plumbing actions;

• support operation of the Building Amendment (Small Second Dwellings) Regulations 2023;

• make it an offence for plumbers to issue an expired compliance certificate;

• clarify that it is an offence for a person to perform the functions of a building surveyor under the Building Act 1993 or the Building Regulations 2018 as well as under any other Act or Regulations;

• insert a new regulation making power to enable fees to be waived or refunded;

• require the Victorian Building Authority to have regard to a Minister’s guideline when determining fees for licensed building employees;

• provide the Victorian Building Authority with the same flexibility to adjust the period of insurance coverage for practitioners operating under an automatic deemed registration as it provided to Victorian building and plumbing practitioners;

• streamline local council disclosure of an adjoining owner’s name and contact details for the purpose of servicing a protection works notice;

• streamline processes for building surveyors to transfer their functions; and

• make several minor amendments to improve clarity and efficiency of the Building Act.

The Bill also amends the Architects Act 1991 to:

• require architects to submit a fit and proper person declaration with their annual registration renewal;

• require approved partnerships and companies to renew their approval under the same process as registered architects; and

• clarify the Architects Registration Board of Victoria’s (ARBV) ability to charge fees.

Finally, the Bill amends the Victorian Planning Authority Act 2017 to implement the independent broad-based Anti-corruption Commissioner’s recommendations to increase the timeframe for commencing prosecution of the Act’s summary offences from 12 months to up to 3 years from the date of the alleged offence.

Amendments to the Building Act 1993

Enabling implementation of Building Electrification Regulatory Impact Statement outcomes in accordance with the Gas Substitution Roadmap

The Government is helping Victorians reduce their reliance on expensive fossil gas – easing the cost-of-living pressures on families and businesses.

In December 2023, Victoria’s Gas Substitution Roadmap was updated and it was announced that options to progressively electrify all new and existing residential and most commercial buildings would be investigated in 2024, including through a regulatory impact statement process and public consultation.

The Bill enables the making of regulations that may expand the circumstances in which a relevant building surveyor must refuse an application for a building permit application. This will enable the inclusion of circumstances where an application for a new building permit would result in a new reticulated gas connection. The Bill also enables the making of regulations that may restrict the type of work that can be carried out in relation to reticulated gas connections and reticulated gas appliances in prescribed classes of buildings.

These regulation making powers will enable draft regulations and a regulatory impact statement to be released later this year for industry engagement and public consultation on options for the electrification of Victorian buildings, including understanding how we can support Victorians to transition to electric appliances as older gas appliances reach their end of life. Decisions have already been taken to exclude agriculture and industrial buildings and use of liquefied petroleum gas from this year’s regulatory impact statement that is enabled by the regulation making powers in this Bill. Gas cooktops in existing homes, as well as gas appliances in existing commercial buildings will also be excluded from these requirements. The Bill does not prohibit or enable regulations to be made that can prohibit the maintenance or repair of a reticulated gas appliance.

This is a critical step towards facilitating a smooth transition away from relying on fossil gas to power our homes and businesses and towards more reliable, affordable, renewable energy.

Building orders

A key objective of the Building Act 1993 is to protect the health and safety of people who use buildings and places of public entertainment.

Building orders are a key enforcement tool used by municipal building surveyors to achieve this objective.

A building order can be issued to owners of a building, place of public entertainment or land on which building work is or will be carried out and can require an owner to carry out building work, protection work or other work required by the Building Regulations 2018.

The Bill ensures that municipal building surveyors have power to issue a building order requiring owners to take any action that is necessary to remove, reduce or otherwise address (or any action that would contribute towards removing, reducing or addressing) a danger to life, safety or health of a person or property. The amendments will give the municipal building surveyors the necessary tools to help keep occupiers of, and visitors to, buildings safe.

The Building Appeals Board will continue to be the appropriate avenue for building owners to address any concerns about the requirements of a building order.

Building and plumbing action limitation periods

The Bill makes minor amendments to clarify that new section 77A of the Victorian Civil and Administrative Tribunal Act 1998, as recently amended by the Justice Legislation Amendment Act 2023, applies to the limitation periods specified in the Building Act 1993.

Matters in the building and property list of the Victorian Civil and Administrative Tribunal could potentially be transferred to the Magistrates’, County or Supreme Court if VCAT considers that one of those courts is better placed to deal with the matter. Due to potential delays associated with such a transfer, there is a risk that consumers may lose their cause of action if the limitation period in the Building Act 1993 is reached while the transfer is occurring.

To ensure that a person does not lose their right to take legal action as a result of a forced venue change, the Bill amends the Building Act 1993 so that this limitation period falls within the scope of the limitation periods that may be extended under section 77A of the VCAT Act.

Ministerial guidelines for building accessibility

The Building Act 1993 enables the Minister for Planning to make guidelines relating to the design and siting of single dwellings. The Bill amends that Act to extend this power to include accessibility requirements for single dwellings, including small second dwellings, to support operation of the Building Legislation Amendment (Small Second Dwelling) Regulations 2023.

These Regulations contributed to delivery of commitments in Victoria’s Housing Statement. This included removing planning permit requirements for small second dwellings to encourage greater diversity, affordability, and equitable housing options over the next decade.

Proof of insurance for persons with automatic deemed registration

The Bill provides the Victorian Building Authority with flexibility to adjust periods of insurance coverage for practitioners operating under an automatic deemed registration.

This will not enable practitioners to work without the required insurance, but rather will overcome administrative issues in lining up insurance policies with the date that the notification that a relevant practitioner intends to work in Victoria is provided to the Victorian Building Authority. This amendment aligns with existing provisions in the Building Act 1993 that enable the Victorian Building Authority to adjust periods of insurance required to be held by Victorian building and plumbing practitioners to reflect the period that the practitioner will be operating.

Authorising disclosure of adjoining owner contact details for service of a protection works notice

The Bill makes an amendment to provide clear authority for local councils to disclose the name and contact details of an adjoining owner for the purposes of a protection works notice.

The Building Act 1993 requires an owner carrying out protection work in respect of an adjoining property to serve the owner of the adjoining property a notice of their proposed building work. In some cases, it may not be possible to readily locate the adjoining owner for the purpose of serving the protection works notice (for instance because they reside interstate and their contact details are not known). The consequence is that the adjoining owner will not be aware of the proposed work impacting their property, and therefore is not afforded the opportunity to agree or disagree to the proposed protection works.

Often, the owner or the relevant building surveyor approach the relevant council to request the adjoining owner’s contact details for the purpose of serving a protection works notice. Privacy laws in Victoria already permit councils to share personal information about adjoining property owners for the purpose of serving protection works notices. However, in practice councils take different approaches to these requests, with inconsistent application of processes and requirements.

The amendments in the Bill provide a clear authority for councils to disclose the contact details of adjoining property owners for the purpose of facilitating the service of a protection work notice. The Bill further enables regulations to be made specifying what information and documentation must be contained in requests for contact details from councils. Such prescribed documentation may include statutory declarations confirming the specific purposes for which the information will be used.

Plumbing compliance certificates

The Building Act 1993 and the Plumbing Regulations 2018 require licensed plumbers to certify completed work through issuing a plumbing compliance certificate. A compliance certificate must be issued for prescribed types of plumbing work and for all plumbing work with a value of $750 or more.

The Bill amends the Building Act 1993 to introduce a 12-month expiry date for the forms used to prepare plumbing compliance certificates to help mitigate incentives for plumbers to pre-purchase certificate forms to avoid potential future increases in price. The Victorian Building Authority will have the ability to extend the expiry dates for compliance certificates for a further 12-months.

The Bill will also make it an offence to issue a plumbing compliance certificate prepared using an expired compliance certificate form and will introduce a penalty for the issue of a compliance certificate that is not for the correct kind and value of plumbing work that it is issued for.

Fee-related amendments

The amendments in the Bill provide that the Victorian Building Authority, when determining fees under that Act for the licensing of any class of building employee, must have regard to a Ministerial Guideline. This amendment allows for a consistent approach for the determination of fees for the registration of building practitioners and licensing of building employees.

The Bill also amends the Building Act 1993 and the Architects Act 1991 to allow a specified person or body (for example, the Victorian Building Authority or the Architects Registration Board of Victoria) to reduce, waive or refund a fee in whole or in part in prescribed circumstances.

Transfer of building surveyor functions

The Bill makes minor amendments to the Building Act 1993 to streamline the process for a relevant building surveyor to transfer their functions to another building surveyor, either permanently or temporarily.

Minor miscellaneous amendments

The Bill makes several minor miscellaneous amendments to boost the clarity and operation of the Building Act 1993, including to:

• clarify when the deputy chair of the Building Advisory Board may act as Chair and streamline acting arrangements;

• update the name of a nominating member to the Building Regulations Advisory Committee from the Building Designers Association of Victoria to Design Matters National Limited;

• expressly apply certain provisions of the Interpretation of Legislation Act 1994 to the Victorian Building Authority’s sub-delegation powers;

• update references to clauses of the National Construction Code; and

• clarify that, for the purposes of the Building Act 1993 and the offence against section 169D(1) of that Act, carrying out work as a building surveyor includes carrying out any functions conferred on a building surveyor or a relevant building surveyor under the that Act or the Building Regulations 2018 or under any other Act or other regulations.

Amendments to the Architects Act 1991

The Bill makes amendments to the Architects Act 1991 to strengthen the effectiveness of the Architects Registration Board of Victoria, which will support this regulator to uphold high standards of professional conduct in the architecture industry.

Annual renewal of registration and approval

The Bill replaces the existing annual fee for registration of an architect with a new annual renewal process for registered architects, approved companies, and approved partnerships. Existing provisions relating to the annual fee are inefficient and have resulted in an excessive administrative burden on the Architects Registration Board of Victoria. The new renewal process will streamline the Board’s ability to enforce eligibility and continuing professional development requirements and remove entities that are non-compliant from the Register of Architects.

Instead of continuing in perpetuity, architect registrations and approvals will transition to an annual term based on the financial year. Under this simplified arrangement, a registration or approval will expire if the annual renewal fee is unpaid and a renewal application is not submitted. The Architects Registration Board of Victoria will no longer be required to initiate a suspension or costly disciplinary proceedings in order to deal with unpaid annual fees, allowing the regulator to better allocate its resources.

The new renewal process will incorporate an enhanced focus on the probity of registered architects with a requirement for registered architects to submit a statement that they remain a fit and proper person each year. The statement will ensure that any relevant probity matters are routinely reported to the regulator, ensuring the Architects Registration Board of Victoria is able to protect consumers and uphold the probity of the profession.

The renewal provisions provide fair opportunity to persons or entities that inadvertently fail to pay their renewal fees by the due date to maintain their registration or approval. Late applications will be allowed within a one-month grace period and a further two-month grace period will allow entities whose registration or approval has ceased to, in effect, restore their registration or approval. Additional fees will apply in these circumstances which are intended to serve as a disincentive for late renewal while also recovering the additional costs incurred by the Architects Registration Board of Victoria when following up and administering late renewal applications.

Further related amendments include a provision which clarifies that if a person’s registration as an architect has ceased or is suspended, that does not preclude disciplinary proceedings from commencing or continuing in relation to conduct that took place whilst their registration was active.

Fees charged by the Architects Registration Board of Victoria

The Bill makes amendments to the regulation-making powers to prescribe fees for the purposes of the Architects Act 1991 to align with similar powers in the Building Act 1993 and ensure that the Architects Registration Board of Victoria can operate effectively on a cost-recovery basis. The Bill also allows regulations to be made providing for the reduction, waiver, or refund of fees, providing greater flexibility to the Board to support registered and approved entities in circumstances such as financial hardship.

Amendments to the Victorian Planning Authority Act 2017

The Bill will amend the Victorian Planning Authority Act 2017 to implement the Independent Broad-based Anti-corruption Commissioner’s recommendation to increase the timeframe for commencing prosecution of that Act’s summary offences from 12 months to up to 3 years from the date of the alleged offence.

I commend the Bill to the house.

James NEWBURY (Brighton) (10:35): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Thursday 26 September.