Building Amendment (Enforcement and Other Measures) Act 2017

Authorised by the Chief Parliamentary Counsel Authorised Version i Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 TABLE OF PROVISIONS Section Page Part 1—Preliminary 1 1 Purposes 1 2 Commencement 2 Part 2—Registration of building practitioners 3 3 Definitions 3 4 When may a private building surveyor be appointed? 5 5 Circumstances in which private building surveyor may not act 5 6 New sections 80A and 80B inserted 6 7 New Division 1 of Part 11 substituted and Division 1A inserted 8 8 Meaning of disciplinary action 41 9 Grounds for disciplinary action 41 10 Grounds for immediate suspension 42 11 Consequential amendments 42 12 New section 180C inserted 42 13 Application for licensing or registration as a plumber 43 14 Section 221U substituted and new section 221UA inserted 43 15 New section 241A substituted 44 16 New section 243A inserted 45 17 Penalties for bodies corporate 48 Part 3—Enforcement, building permits and building surveyors 49 18 Definitions 49 19 New section 15B inserted 49 20 Offences relating to carrying out building work 50 21 New sections 16A and 16B inserted 51 22 Section 24A substituted and new section 24B inserted 53 23 New section 25A substituted and sections 25AB to 25AE inserted 56 24 Section 33 substituted 60 25 Section 34 substituted and new sections 35A and 35B inserted 61 26 Offences relating to compliance with direction 63 -- 1 of 197 -- Section Page ii Authorised by the Chief Parliamentary Counsel 27 Notice to owner and Authority of non-compliance with direction 63 28 New sections 78A and 78B inserted 63 29 New Division 1A of Part 6 inserted 64 30 Termination of appointment 68 31 Division 1 of Part 8 substituted 69 32 Building notices 72 33 Contents and form of building notice 72 34 Building orders—general 73 35 Building orders to stop building work 74 36 Building orders—minor works 75 37 Amendment or cancellation of certain building orders 75 38 Effect of decisions under appeal 75 39 Delegation by the Authority 75 40 Insertion of new Subdivision 2A in Division 2 of Part 12— VBA inspectors 76 41 Role of municipal building surveyor outside municipal district 77 42 New section 221HA inserted 78 43 Enforcement staff 79 44 Repeal of sections relating to compliance auditors and plumbing inspectors 80 45 Repeal of Division 1A of Part 13—Performance audits 81 46 Division 2 substituted in Part 13 81 47 Insertion of Subdivision heading in Division 2A of Part 13 124 48 Insertion of new Subdivision 2 in Division 2A of Part 13 124 49 Service of documents—generally 128 50 Proceedings for offences 130 51 Offence to hinder or obstruct 131 52 Section 246 substituted 131 53 New section 251A inserted 132 54 Section 253 substituted 133 55 New section 259AB inserted 134 56 General regulation-making powers 138 Part 4—Building permit numbers and levies 139 57 Definition 139 58 New section 18AA inserted 139 59 Consequential amendments relating to building permit levies 140 60 New section 18C inserted 140 61 Amendment to heading of Division 3 of Part 3 141 62 New section 23A inserted 142 63 New Division 3AA of Part 3 inserted 143 64 Functions of the Authority 145 65 Payments into Building account 146 66 Building permit levy must be paid 146 67 New section 205GA inserted 146 68 Section 205H substituted and new section 205HA inserted 147 -- 2 of 197 -- Section Page iii Authorised by the Chief Parliamentary Counsel 69 Substitution of sections 205J and 205K and insertion of section 205KA 148 70 New Subdivisions 4A and 4B inserted in Division 2 of Part 12 150 71 Application of Act to the Crown and public authorities 159 Part 5—Miscellaneous amendments to Building Act 1993 160 72 Definitions 160 73 Section 6 repealed 160 74 Decision on application for certificate of consent 160 75 Work not to be carried out until protection requirements met 161 76 Section 127 substituted and new section 127A inserted 161 77 Section 189 substituted 162 78 New section 192A inserted 163 79 Insurance for domestic building work to be provided by designated insurers 164 80 Effect of decisions under appeal 164 81 Sections 174 and 174A repealed 164 82 Payments out of the Building account 165 83 Council to administer building provisions in its municipal district 165 84 Appointment of municipal building surveyor 165 85 Section 216B substituted 166 86 Role of municipal building surveyor outside municipal district 166 87 People involved in a plumbing business need not be licensed or registered 166 88 Regulations 166 89 Undertakings 167 90 New section 239A inserted 167 91 New section 242A inserted 168 92 New sections 259BA and 259BB inserted 168 93 New section 274 inserted 169 94 New Schedule 10 inserted 170 95 Miscellaneous amendments 179 96 References to Tribunal 181 97 References to the Victorian Building Authority 182 98 Suspension of licence where failure to comply with insurer's direction 182 99 Updating of references 182 100 Repeal of redundant provisions 183 Part 6—Amendments to Domestic Building Contracts Act 1995 184 101 New section 29 substituted 184 102 General contents etc. of a contract 186 103 Breach of dispute resolution order notice 186 -- 3 of 197 -- Section Page iv Authorised by the Chief Parliamentary Counsel Part 7—Amendments to other Acts 187 Division 1—Amendments to Building Legislation Amendment (Consumer Protection) Act 2016 187 104 New section 40A inserted 187 105 New Division 3 inserted in Part 6 187 106 Further limitations on issue of building permit 189 107 Offence to work as building practitioner without required insurance 189 108 Section 71 repealed 189 Division 2—Amendment to Victorian Civil and Administrative Tribunal Act 1998 189 109 New clause 4JA inserted in Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 189 Division 3—Amendment to Casino Control Act 1991 190 110 Administration of Building Act 190 Division 4—Amendment to Architects Act 1991 190 111 Grounds for disciplinary action against a registered architect 190 Division 5—Amendment to Criminal Procedure Act 2009 191 112 New clause 3AA inserted in Schedule 2—Indictable offences that may be heard and determined summarily 191 Part 8—Repeal of amending Act 192 113 Repeal of amending Act 192 ═══════════════ Endnotes 193 1 General information 193 -- 4 of 197 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 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 1 Purposes 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 Victoria -- 5 of 197 -- Part 1—Preliminary Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 2 Authorised by the Chief Parliamentary Counsel (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. 2 Commencement (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. -- 6 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 3 Authorised by the Chief Parliamentary Counsel Part 2—Registration of building practitioners 3 Definitions (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; -- 7 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 4 Authorised by the Chief Parliamentary Counsel 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.". -- 8 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 5 Authorised by the Chief Parliamentary Counsel 4 When 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.". 5 Circumstances 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 -- 9 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 6 Authorised by the Chief Parliamentary Counsel (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.". 6 New 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. -- 10 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 7 Authorised by the Chief Parliamentary Counsel (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. 80B Duties 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 -- 11 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 8 Authorised by the Chief Parliamentary Counsel (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.". 7 New 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 169 Representation 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. 169A Representation 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. -- 12 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 9 Authorised by the Chief Parliamentary Counsel 169B Representation 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. 169C Representation 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. 169D Offence 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 -- 13 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 10 Authorised by the Chief Parliamentary Counsel (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. 169E Offence 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. -- 14 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 11 Authorised by the Chief Parliamentary Counsel 169F Offence 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. -- 15 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 12 Authorised by the Chief Parliamentary Counsel (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. 169G Building 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. -- 16 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 13 Authorised by the Chief Parliamentary Counsel 169H Advertisements 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. 169I Advertisements 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. -- 17 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 14 Authorised by the Chief Parliamentary Counsel 169J Exception 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 170 Who 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. -- 18 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 15 Authorised by the Chief Parliamentary Counsel 170A Application 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. 170B Authority 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. -- 19 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 16 Authorised by the Chief Parliamentary Counsel 170C Consent 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. 170D Change 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. -- 20 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 17 Authorised by the Chief Parliamentary Counsel (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 171 Registration (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 -- 21 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 18 Authorised by the Chief Parliamentary Counsel (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. 171A Additional requirements for registration—bodies corporate—general (1) This section sets out additional requirements for registration where the applicant is a body corporate. -- 22 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 19 Authorised by the Chief Parliamentary Counsel (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. 171B Additional 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. -- 23 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 20 Authorised by the Chief Parliamentary Counsel (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 -- 24 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 21 Authorised by the Chief Parliamentary Counsel (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. 171C Additional 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. -- 25 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 22 Authorised by the Chief Parliamentary Counsel (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. 171D Personal 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 -- 26 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 23 Authorised by the Chief Parliamentary Counsel (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. 171E Financial 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 -- 27 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 24 Authorised by the Chief Parliamentary Counsel 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 -- 28 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 25 Authorised by the Chief Parliamentary Counsel 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 -- 29 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 26 Authorised by the Chief Parliamentary Counsel (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. 171F Excluded 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 -- 30 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 27 Authorised by the Chief Parliamentary Counsel 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 -- 31 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 28 Authorised by the Chief Parliamentary Counsel 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. -- 32 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 29 Authorised by the Chief Parliamentary Counsel (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. -- 33 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 30 Authorised by the Chief Parliamentary Counsel 171G Issue 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. 171H Conditions 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. 171I Period 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. -- 34 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 31 Authorised by the Chief Parliamentary Counsel 171J Issue 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 172 Annual 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, -- 35 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 32 Authorised by the Chief Parliamentary Counsel 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 173 Renewal 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. -- 36 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 33 Authorised by the Chief Parliamentary Counsel (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. -- 37 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 34 Authorised by the Chief Parliamentary Counsel 173A Authority 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. 173B Surrender of registration A registered building practitioner may, with the consent of the Authority, surrender the practitioner's registration. -- 38 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 35 Authorised by the Chief Parliamentary Counsel Subdivision 5—Nominee directors 174 General 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 175AA Definitions 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; -- 39 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 36 Authorised by the Chief Parliamentary Counsel 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. 175 The 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. 175A Time 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 -- 40 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 37 Authorised by the Chief Parliamentary Counsel 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; -- 41 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 38 Authorised by the Chief Parliamentary Counsel (ii) if an appeal is brought against the criminal sanction, a decision made dismissing the appeal. 175B Changes 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). 175C Authority 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. 175D Publication 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 -- 42 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 39 Authorised by the Chief Parliamentary Counsel 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 176 Certificate 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. 176A Registered 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— -- 43 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 40 Authorised by the Chief Parliamentary Counsel (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 -- 44 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 41 Authorised by the Chief Parliamentary Counsel (g) a municipal building surveyor or a person authorised by a municipal building surveyor; or (h) an Energy Safe inspector. Penalty: 10 penalty units.". 8 Meaning 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;". 9 Grounds 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; -- 45 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 42 Authorised by the Chief Parliamentary Counsel (hc) the practitioner has failed to comply with a direction under section 80D;". 10 Grounds 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.". 11 Consequential 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". 12 New 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. -- 46 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 43 Authorised by the Chief Parliamentary Counsel (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.". 13 Application for licensing or registration as a plumber Section 221T(2)(ba) of the Building Act 1993 is repealed. 14 Section 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. -- 47 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 44 Authorised by the Chief Parliamentary Counsel (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. 221UA Consent 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.". 15 New 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. -- 48 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 45 Authorised by the Chief Parliamentary Counsel (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.". 16 New 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— -- 49 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 46 Authorised by the Chief Parliamentary Counsel (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— -- 50 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 47 Authorised by the Chief Parliamentary Counsel (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.". -- 51 of 197 -- Part 2—Registration of building practitioners Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 48 Authorised by the Chief Parliamentary Counsel 17 Penalties 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.". -- 52 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 49 Authorised by the Chief Parliamentary Counsel Part 3—Enforcement, building permits and building surveyors 18 Definitions (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;". 19 New 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 -- 53 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 50 Authorised by the Chief Parliamentary Counsel (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.". 20 Offences 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. -- 54 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 51 Authorised by the Chief Parliamentary Counsel (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)". 21 New 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.". -- 55 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 52 Authorised by the Chief Parliamentary Counsel (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. -- 56 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 53 Authorised by the Chief Parliamentary Counsel (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.". 22 Section 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— -- 57 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 54 Authorised by the Chief Parliamentary Counsel (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. 24B Specification of builders in relation to specific building work (1) This section specifies builders for the purposes of section 24A(1)(a). -- 58 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 55 Authorised by the Chief Parliamentary Counsel (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 -- 59 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 56 Authorised by the Chief Parliamentary Counsel 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.". 23 New 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. -- 60 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 57 Authorised by the Chief Parliamentary Counsel (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. 25AB Notice 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 -- 61 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 58 Authorised by the Chief Parliamentary Counsel 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. 25AC Change 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. 25AD Relevant 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— -- 62 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 59 Authorised by the Chief Parliamentary Counsel (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. 25AE Suspension 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 -- 63 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 60 Authorised by the Chief Parliamentary Counsel (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.". 24 Section 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. -- 64 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 61 Authorised by the Chief Parliamentary Counsel (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).". 25 Section 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. -- 65 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 62 Authorised by the Chief Parliamentary Counsel (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. 35B Persons 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.". -- 66 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 63 Authorised by the Chief Parliamentary Counsel 26 Offences 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.". 27 Notice 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". 28 New 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 -- 67 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 64 Authorised by the Chief Parliamentary Counsel (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. 78B Private 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.". 29 New 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 80C A 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). (2) A transfer may not be effected under subsection (1) unless the person who appointed the transferring building surveyor and the new relevant building -- 68 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 65 Authorised by the Chief Parliamentary Counsel surveyor both agree to the transfer of the functions. (3) A transfer under subsection (1) may be for a period of time or permanently. (4) A transfer under subsection (1) has no effect unless— (a) the transfer is made in a form approved by the Authority; and (b) a copy of the transfer form is given by the transferring building surveyor to the new relevant building surveyor; and (c) the new relevant building surveyor gives a copy of the transfer form to the Authority and the relevant council. (5) A transfer under subsection (1) takes effect on the latest of the following dates— (a) the date a copy of the transfer form is given to the Authority; (b) the date a copy of the transfer form is given to the relevant council; (c) the date specified in the transfer form (if any) on which the transfer is to take effect. (6) On a transfer of the functions under subsection (1) taking effect— (a) the appointment of the transferring building surveyor under section 76 in respect of the functions is taken to be terminated; and (b) the new relevant building surveyor is taken to be appointed in respect of the functions by the person who appointed the transferring building surveyor. -- 69 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 66 Authorised by the Chief Parliamentary Counsel (7) If a transfer of the functions under subsection (1) is not permanent, at the end of the period of transfer— (a) the appointment of the new relevant building surveyor is taken to be terminated in respect of the functions; and (b) the transferring building surveyor is taken to be appointed in respect of the functions by the same person who had appointed the transferring building surveyor before the transfer. (8) The new relevant building surveyor to whom the functions relating to building work are transferred under subsection (1) must give a copy of the transfer form to the person who appointed the transferring building surveyor and to the builder engaged to carry out the building work. Penalty: 50 penalty units, in the case of a natural person; 250 penalty units, in the case of a corporation. 80D Authority may direct transfer of functions of employee building surveyor (1) The Authority may direct a registered building surveyor that has employed or engaged a person to act as a private building surveyor (the employee building surveyor) to transfer all functions under this Act or the building regulations being carried out by the employee building surveyor to— (a) another private building surveyor employed or engaged by the registered building surveyor; or -- 70 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 67 Authorised by the Chief Parliamentary Counsel (b) the registered building surveyor, if a natural person. (2) The Authority may direct a registered building surveyor that has employed or engaged a person as a designated building surveyor to transfer all functions under this Act or the building regulations being carried out by the designated building surveyor to another designated building surveyor employed or engaged by the registered building surveyor. (3) The Authority may give a direction under subsection (1) or (2) if— (a) the registration of the employee building surveyor or designated building surveyor (as the case may be) has been suspended or cancelled; or (b) the employee building surveyor or designated building surveyor (as the case may be)— (i) has died; or (ii) is in prison; or (iii) has become a represented person within the meaning of the Guardianship and Administration Act 1986; or (iv) has become an insolvent under administration; or (v) in the opinion of the Authority is incapable of carrying out the work because the building surveyor is mentally or physically infirm or for any other reason; or -- 71 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 68 Authorised by the Chief Parliamentary Counsel (vi) in the opinion of the Authority has ceased to carry out the functions of a private building surveyor or a designated building surveyor (as the case may be). (4) A direction given under subsection (1) or (2)— (a) must be given in writing; and (b) may specify a period within which the functions of the employee building surveyor or designated building surveyor (as the case may be) are to be transferred. (5) A registered building surveyor must comply with a direction under subsection (1) or (2). (6) If functions are transferred from an employee building surveyor or a designated building surveyor in accordance with a direction under subsection (1) or (2), the relevant registered building surveyor must notify— (a) in the case of the transfer of the functions from a private building surveyor, the person who appointed the private building surveyor under section 76 to perform the functions; and (b) in all other cases, the relevant council.". 30 Termination of appointment In section 81(1) of the Building Act 1993, before "subsection (3)" insert "section 80C(6) and (7) and". -- 72 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 69 Authorised by the Chief Parliamentary Counsel 31 Division 1 of Part 8 substituted For Division 1 of Part 8 of the Building Act 1993 substitute— "Division 1—Emergency orders 102 Emergency orders A municipal building surveyor may make an emergency order under this Division if the municipal building surveyor is of the opinion that the order is necessary because of a danger to life or property arising out of the condition or use or proposed use of— (a) a building; or (b) the land on which building work is being or is proposed to be carried out; or (c) a place of public entertainment. 103 Orders to vacate (1) An emergency order may— (a) direct an owner or occupier to evacuate a building or land or a place of public entertainment within a specified time or times; and (b) if an order under paragraph (a) is given, direct any person to vacate a building or land or a place of public entertainment within a specified time or times. -- 73 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 70 Authorised by the Chief Parliamentary Counsel (2) An emergency order may also prohibit any person from entering, using or occupying a building, land or a place of public entertainment for the period determined in accordance with section 105A unless permitted by the municipal building surveyor. 104 Orders to owners, occupiers or builders (1) An emergency order may require the owner or occupier of a building or land or a place of public entertainment— (a) not to conduct or not to allow the conduct of a public entertainment or immediately cease to conduct a public entertainment; or (b) to within a specified time stop building work or to carry out building work or other work necessary to make the building, land or place safe or to secure the building, land or place from access. (2) An emergency order may require the owner of a building or land or a place of public entertainment to cause an inspection of that building, land or place to be conducted by a specified person within a specified time. (3) An emergency order may require the owner of a building or a place of public entertainment or a builder to cause specified material used in that building or place to be tested by a specified person within a specified time. 105 Form and service of emergency order (1) An emergency order must be in writing and must contain any matters required by the regulations. -- 74 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 71 Authorised by the Chief Parliamentary Counsel (2) The municipal building surveyor must cause an emergency order to be served on the person to whom it is directed without delay after it is made. (3) The municipal building surveyor must give a copy of an emergency order to any private building surveyor appointed to perform a function in relation to a building, land or place to which the order relates. 105A Duration of order (1) An emergency order under section 103 must specify a period, not exceeding 48 hours for the duration of the order. (2) If, before the end of the period specified in the emergency order, the municipal building surveyor issues a building notice asking an owner to show cause why entry into, or the use or occupation of, the building or place that is subject to the order should not be prohibited, the emergency order remains in force until the earlier of— (a) the end of the specified period under section 108 for the building notice; or (b) 14 days. (3) Subject to this section, an emergency order remains in force until— (a) it is complied with; or (b) it is cancelled by— (i) the municipal building surveyor under section 105B; or (ii) the Building Appeals Board under section 142. -- 75 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 72 Authorised by the Chief Parliamentary Counsel 105B Cancellation of emergency order A municipal building surveyor may cancel an emergency order by written notice given to the person to whom the notice was directed if the order was made in error or the circumstances giving rise to the making of the order have changed.". 32 Building notices After section 106(b) of the Building Act 1993 insert— "(ba) safety or emergency services, installations or equipment have not been maintained in accordance with the occupancy permit and the regulations;". 33 Contents and form of building notice For section 108(1) of the Building Act 1993 substitute— "(1) A building notice may require the owner of a building, land or place of public entertainment to show cause within a specified period— (a) why entry to, or the use or occupation of the building, land or place should not be prohibited; or (b) why the owner should not evacuate the building. (1A) A building notice may require the owner of a building, land or place of public entertainment to show cause within a specified period why the owner should not carry out building work, protection work or work required by the regulations in relation to the building, land or place.". -- 76 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 73 Authorised by the Chief Parliamentary Counsel 34 Building orders—general For section 111(3) of the Building Act 1993 substitute— "(3) A building order under this section may— (a) direct an owner or occupier to evacuate a building or land or a place of public entertainment within a specified time or times; and (b) if an order under paragraph (a) is given, direct any person to vacate a building or land or a place of public entertainment within a specified time or times. (4) A building order under this section may prohibit any person from entering, using or occupying a building, land or a place of public entertainment for a specified period unless permitted by the municipal building surveyor. (5) A building order under this section may direct the owner of a building, land or a place of public entertainment to carry out building work, protection work or other work required by the regulations in relation to the building, land or place. (6) A building order may require the owner of a building or land or a place of public entertainment to cause an inspection of that building, land or place to be conducted by a specified person within a specified time. (7) A building order may require the owner of a building or a place of public entertainment or a builder to cause specified material used in that building or place to be tested by a specified person within a specified time.". -- 77 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 74 Authorised by the Chief Parliamentary Counsel 35 Building orders to stop building work For section 112(5) of the Building Act 1993 substitute— "(5) If an order to stop building work is made under this section, the person to whom it is directed must stop the building work except— (a) building work carried out in compliance with an order under section 111 in relation to the building work; or (b) building work carried out in compliance with a direction to fix building work; or (c) building work exempted by the building surveyor under subsection (6). (6) The relevant building surveyor may exempt any part of the building work from a building order under this section if the relevant building surveyor considers that it is necessary for the building work to be carried out— (a) in the interests of the safety or security of the building, land or place on which the building work is being carried out; or (b) in the interests of the safety or health of any member of the public; or (c) to prevent a nuisance to members of the public or occupiers of nearby properties.". -- 78 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 75 Authorised by the Chief Parliamentary Counsel 36 Building orders—minor works In section 113 of the Building Act 1993, before "building work" insert "the owner of a building, land on which building work is being or is proposed to be carried out or a place of public entertainment to carry out". 37 Amendment or cancellation of certain building orders After section 116(3) of the Building Act 1993 insert— "(4) The relevant building surveyor must inform the owner in writing without delay of the relevant building surveyor's decision under subsection (2).". 38 Effect of decisions under appeal (1) In section 146(1) of the Building Act 1993, for "(2)" substitute "(2), (2A)". (2) After section 146(2) of the Building Act 1993 insert— "(2A) Unless the Building Appeals Board otherwise directs, an appeal under section 142(2)(a) against the making of a building order prohibiting the occupation of a building or place does not stay the operation of the decision under appeal if the order was made following the making of an emergency order in respect of the same matter.". 39 Delegation by the Authority In section 199 of the Building Act 1993, for "section 205M" (where twice occurring) substitute "section 80D or 205M". -- 79 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 76 Authorised by the Chief Parliamentary Counsel 40 Insertion of new Subdivision 2A in Division 2 of Part 12—VBA inspectors After Subdivision 2 of Division 2 of Part 12 of the Building Act 1993 insert— "Subdivision 2A—VBA inspectors 204A Appointment of inspectors (1) The Authority may appoint as a VBA inspector— (a) a person appointed or engaged by the Authority under section 204; or (b) a person appointed as an inspector, enforcement officer, authorised officer or authorised person by or under any other Act; or (c) a person appointed or authorised as an inspector, investigator, authorised officer or authorised person under a prescribed interstate Act. (2) An appointment under subsection (1) must be made by instrument. (3) The Authority must not appoint a person as a VBA inspector unless the Authority is satisfied that the person is appropriately qualified or has successfully completed appropriate training. (4) A VBA inspector appointed under subsection (1)(a) or (b) may also be appointed or authorised under a prescribed interstate Act as an inspector, investigator, authorised officer or authorised person under that Act. (5) In this section— interstate Act means an Act of another State or Territory. -- 80 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 77 Authorised by the Chief Parliamentary Counsel 204B VBA inspector's identification The Authority must issue identification to each VBA inspector that— (a) contains a photograph of the VBA inspector; and (b) states the name of the VBA inspector; and (c) states the fact that the VBA inspector is appointed by the Authority. 204C Production of identification (1) A VBA inspector must produce the VBA inspector's identification for inspection— (a) before exercising a power under this Act or the regulations; and (b) at any time during the exercise of a power under this Act or the regulations, if asked to do so. Penalty: 1 penalty unit. (2) Subsection (1) does not apply to— (a) a requirement made by post; or (b) the exercise of a power of entry under section 228I(1).". 41 Role of municipal building surveyor outside municipal district For section 216C(4)(a) of the Building Act 1993 substitute— "(a) a reference in sections 78(1), 78(1A), 78(3) and 78(4), 78A, 78B, 79(1), 79(1A), 79(2), 80, 80C(1), 81(1) to 81(3) and 83 to a private building surveyor were a reference to the municipal building surveyor; and". -- 81 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 78 Authorised by the Chief Parliamentary Counsel 42 New section 221HA inserted After section 221H of the Building Act 1993 insert— "221HA No entitlement to consideration under contract (1) This section applies if a person— (a) enters into a contract to carry out plumbing work or specialised plumbing work; and (b) the person— (i) carries out that class or type of work despite not being permitted under this Part to do so in contravention of section 221D; or (ii) causes or permits a person who is not permitted under this Part to carry out that class or type of work in contravention of section 221H(3). (2) The person 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 -- 82 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 79 Authorised by the Chief Parliamentary Counsel (c) is not more than the person 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. (3) 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— (a) did in contravention of section 221D; or (b) caused or permitted another person to do in contravention of section 221H(3).". 43 Enforcement staff For section 221ZZY(2) and (3) of the Building Act 1993 substitute— "(2) The Authority must not appoint a person as a plumbing inspector or a compliance auditor under subsection (1) unless the Authority is satisfied that the person to be authorised is appropriately qualified or has successfully completed appropriate training. (3) The Authority must issue identification to each person appointed as a plumbing inspector which must— (a) contain a photograph of the person; and (b) state the name of that person; and (c) state the fact that the person is a plumbing inspector appointed by the Authority. -- 83 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 80 Authorised by the Chief Parliamentary Counsel (4) The Authority must issue identification to each person appointed as a compliance auditor which must— (a) contain a photograph of the person; and (b) state the name of that person; and (c) state the fact that the person is a compliance auditor appointed by the Authority. (5) A plumbing inspector or a compliance auditor must produce the identification issued under this section for inspection— (a) before exercising a power under this Act or the regulations; and (b) at any time during the exercise of a power under this Act or the regulations if asked to do so. Penalty: 1 penalty unit. (6) Subsection (5) does not apply to— (a) a requirement made by post; or (b) the exercise of a power of entry under section 228I(1).". 44 Repeal of sections relating to compliance auditors and plumbing inspectors (1) Sections 221ZZZ, 221ZZZA, 221ZZZB and 221ZZZBA of the Building Act 1993 are repealed. (2) In Schedule 5 to the Building Act 1993 omit— "section 221ZZZB(3) 3 penalty units section 221ZZZBA(2) 3 penalty units.". -- 84 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 81 Authorised by the Chief Parliamentary Counsel 45 Repeal of Division 1A of Part 13—Performance audits Division 1A of Part 13 of the Building Act 1993 is repealed. 46 Division 2 substituted in Part 13 For Division 2 of Part 13 of the Building Act 1993 substitute— "Division 2—Information gathering and entry powers Subdivision 1—General 227EA Definition of municipal building surveyor for the purposes of this Division In this Division— municipal building surveyor means a municipal building surveyor of a council when performing functions that relate to the administration and enforcement by that council of Parts 3, 4, 5, 7 and 8 and the building regulations in the council's municipal district. 227EB Warning about giving information that may incriminate a person If an authorised person requires a natural person to give any information under this Division, the authorised person must inform the person, before or at the time at which the person gives that information, that the person may refuse or fail to give that information if the giving of the information would tend to incriminate the person. -- 85 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 82 Authorised by the Chief Parliamentary Counsel Subdivision 2—Powers to require production of information or documents 227F Meaning of authorised person in this Subdivision In this Subdivision— authorised person means any of the following persons— (a) the Authority; (b) a municipal building surveyor; (c) Energy Safe Victoria when performing functions under Part 12A or any regulations made under that Part. 227G Power to obtain information or documents (1) An authorised person may give a person a notice in writing requiring the person to provide information or documents in the custody or control of the person to the authorised person— (a) if the authorised person has reasonable grounds to suspect that an offence has been committed under this Act or the regulations in relation to the carrying out of building work or plumbing work; or (b) to determine whether this Act or the regulations have been complied with; or (c) to assist in the enforcement of safety of buildings and of building and plumbing standards under this Act and the regulations. -- 86 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 83 Authorised by the Chief Parliamentary Counsel (2) If any documents are produced to an authorised person under this section, the authorised person may make copies of or take extracts from the documents and retain possession of those copies and extracts. 227H Documents or information may be provided by post A person who provides a document or information in response to a requirement of an authorised person under this Subdivision may send that document or information to the authorised person by post. Subdivision 3—Power to require production of information or documents under court order 227I Meaning of authorised person in this Subdivision In this Subdivision— authorised person means any of the following persons— (a) a VBA inspector; (b) a municipal building surveyor; (c) a natural person authorised in accordance with section 228A by a municipal building surveyor to exercise a power under this Subdivision on behalf of the municipal building surveyor; (d) a natural person authorised in accordance with section 228A by Energy Safe Victoria to exercise a power under this Subdivision in relation to Part 12A or the -- 87 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 84 Authorised by the Chief Parliamentary Counsel regulations made under that Part on behalf of Energy Safe Victoria; (e) a compliance auditor appointed under Part 12A; (f) a plumbing inspector appointed under Part 12A. 227J Authorised person may seek court order (1) If an authorised person believes on reasonable grounds that a person may have contravened this Act or the regulations, the authorised person may apply to the Magistrates' Court for an order requiring any person at a time and place specified by the authorised person— (a) to answer orally or in writing any questions put by the authorised person in relation to the alleged contravention; or (b) to supply orally or in writing information required by the authorised person in relation to the alleged contravention; or (c) to produce to the authorised person specified documents or documents of a specified class of document relating to the alleged contravention. (2) The Magistrates' Court may make the order if the Court is satisfied that there are reasonable grounds to believe that a person may have contravened this Act or the regulations. (3) An order must state a day on which the order ceases to have effect. -- 88 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 85 Authorised by the Chief Parliamentary Counsel (4) If an order does not state a day on which the order ceases to have effect, the order ceases to have effect 28 days after the making of the order. 227K Inspection of documents under court order (1) If any documents are produced to an authorised person under an order made under this Subdivision, the authorised person may do all or any of the following— (a) inspect the documents or authorise a person to inspect the documents; (b) make copies of or take extracts of the documents; (c) seize the documents; (d) secure any seized documents against interference; (e) retain possession of the documents in accordance with this Division. (2) An authorised person may only seize documents under subsection (1)(c) if the authorised person considers the documents necessary for the purpose of obtaining evidence for the purpose of any proceedings against any person under this Act or the regulations. 227L Notification of execution of court order (1) An authorised person who executes an order under this Subdivision must, as soon as practicable after the execution of the order, notify the Magistrates' Court in writing of— (a) the time and place of execution; and (b) the documents or classes of document seized; and -- 89 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 86 Authorised by the Chief Parliamentary Counsel (c) if documents were seized under section 227K(1)(c) in relation to an alleged contravention other than a contravention for which the order was made, the alleged contravention in relation to which the documents were seized. (2) The Magistrates' Court may direct the authorised person to bring before the Court a document to which subsection (1)(c) applies so that the matter may be dealt with according to law. (3) The Magistrates' Court may direct that a document brought before it under subsection (2) be returned to its owner, if in the opinion of the Court the return of the document is consistent with the interests of justice. (4) A direction under subsection (3) may be subject to any condition the Magistrates' Court considers appropriate. Subdivision 4—Authorised persons 228 Authorised persons under this Subdivision (1) For the purposes of the exercise of the power of entry under section 228D, including any powers relating to that power, an authorised person means any of the following persons— (a) a relevant building surveyor or a natural person authorised in accordance with section 228A by a relevant building surveyor to exercise all or any of the powers referred to in this subsection on behalf of the relevant building surveyor; -- 90 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 87 Authorised by the Chief Parliamentary Counsel (b) the chief officer or a natural person authorised by the chief officer to exercise all or any of the powers referred to in this subsection on behalf of the chief officer. (2) For the purposes of the exercise of the powers of entry under sections 228E, 228I, 228K and 228M, including any powers relating to those powers, an authorised person means any of the following persons— (a) a VBA inspector; (b) a municipal building surveyor or a natural person authorised in accordance with section 228A by a municipal building surveyor to exercise all or any of the powers referred to in this subsection on behalf of the municipal building surveyor; (c) a natural person authorised in accordance with section 228A by Energy Safe Victoria to exercise on behalf of Energy Safe Victoria all or any of the powers referred to in this subsection in relation to Part 12A or the regulations made under that Part; (d) a compliance auditor appointed under Part 12A; (e) a plumbing inspector appointed under Part 12A. (3) For the purposes of the exercise of the power of entry under section 228J, including any powers relating to that power, an authorised person means any of the following persons— -- 91 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 88 Authorised by the Chief Parliamentary Counsel (a) a VBA inspector; (b) a municipal building surveyor or a natural person authorised in accordance with section 228A by a municipal building surveyor to exercise all or any of the powers referred to in this subsection on behalf of the municipal building surveyor; (c) the chief officer or a natural person authorised by the chief officer to exercise all or any of the powers referred to in this subsection on behalf of the chief officer; (d) a natural person authorised in accordance with section 228A by Energy Safe Victoria to exercise on behalf of Energy Safe Victoria all or any of the powers referred to in this subsection in relation to Part 12A or the regulations made under that Part; (e) a relevant building surveyor or a natural person authorised in accordance with section 228A by a relevant building surveyor to exercise all or any of the powers referred to in this subsection on behalf of the relevant building surveyor; (f) a compliance auditor appointed under Part 12A; (g) a plumbing inspector appointed under Part 12A. (4) The powers that may be exercised by the chief officer or Energy Safe Victoria under this Division do not limit or affect any powers of entry or related powers of the -- 92 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 89 Authorised by the Chief Parliamentary Counsel chief officer or Energy Safe Victoria under any other Act. (5) In this section— relevant building surveyor means— (a) a relevant building surveyor that is a natural person; or (b) if the relevant building surveyor is a body corporate, the designated building surveyor. 228A Authorisation of persons as authorised persons (1) A municipal building surveyor must not authorise a person to exercise all or any of the powers under this Division on behalf of the municipal building surveyor unless the municipal building surveyor is satisfied that the person to be authorised is appropriately qualified or has successfully completed appropriate training. (2) Energy Safe Victoria must not authorise a person to exercise all or any of the powers under this Division on its behalf unless it is satisfied that the person to be authorised is appropriately qualified or has successfully completed appropriate training. (3) A relevant building surveyor must not authorise a person to exercise all or any of the powers under this Subdivision on behalf of the relevant building surveyor unless the relevant building surveyor is satisfied that the person to be authorised is appropriately qualified or has successfully completed appropriate training. -- 93 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 90 Authorised by the Chief Parliamentary Counsel 228B Authorised person's identification (1) A person referred to in section 228A who authorises another person to exercise all or any of the powers under this Division on behalf of the person must issue identification to that authorised person. (2) The chief officer within the meaning of the Country Fire Authority Act 1958 who authorises another person to exercise all or any of the powers under this Subdivision on behalf of the chief officer must issue identification to that authorised person. (3) The chief officer within the meaning of the Metropolitan Fire Brigades Act 1958 who authorises another person to exercise all or any of the powers under this Subdivision on behalf of the chief officer must issue identification to that authorised person. (4) An identification issued to a person under this section must— (a) display a photograph of the person; and (b) state the person's name; and (c) state the fact that the person is an authorised person within the meaning of section 228. 228C Production of identification (1) An authorised person must produce the authorised person's identification for inspection— (a) before exercising a power under this Act or the regulations; and -- 94 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 91 Authorised by the Chief Parliamentary Counsel (b) at any time during the exercise of a power under this Act or the regulations if asked to do so. Penalty: 1 penalty unit. (2) Subsection (1) does not apply to— (a) a requirement made by post; or (b) the exercise of a power of entry under section 228I(1). (3) For the purposes of subsection (1), the identification of a relevant building surveyor is the certificate of registration issued to the relevant building surveyor under section 171G. Subdivision 5—Entry powers 228D Power of entry—inspections required or authorised by this Act or regulations (1) Subject to subsections (2) and (3), an authorised person may enter any building or land for the purpose of carrying out any inspection authorised or required by this Act or the regulations of— (a) the building or land; or (b) a place of public entertainment; or (c) any equipment, installation, service, records or reports relating to the building or to the place of public entertainment; or (d) building work or plumbing work. (2) An entry of a building or land under subsection (1) may be carried out at any reasonable time unless the entry relates to a building used for residential purposes. -- 95 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 92 Authorised by the Chief Parliamentary Counsel (3) Subject to subsection (4), an authorised person must not enter any part of a building used for residential purposes under subsection (1) unless the authorised person obtains the written consent of the occupier of the building to enter and inspect the building at a time agreed to by the occupier. (4) If the purpose of an inspection by a relevant building surveyor under subsection (1) is to inspect building work that is being carried out in or on a building or land used for residential purposes under a building permit, in order to determine if the work complies with this Act, the building regulations or the permit— (a) the relevant building surveyor does not need to obtain consent under subsection (3) to enter and inspect the building; and (b) the entry and inspection of the building or land must be carried out at a reasonable time. (5) An authorised person must inform the occupier of the building or land (if any) of the purpose of the inspection to be carried out at the building or land— (a) in the case of a building used for residential purposes, before obtaining written consent under subsection (3); and (b) in any other case, before or at the time of entering the building or land. -- 96 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 93 Authorised by the Chief Parliamentary Counsel (6) An authorised person who exercises a power of entry of a building or land under this section may— (a) inspect the building or land and any thing on the building or land; and (b) take photographs (including video recordings) or make sketches of the building or land or the building work or plumbing work concerned; and (c) to the extent that it is reasonably necessary to determine compliance with this Act or the regulations, require a person to produce documents to the authorised person relating to building work or plumbing work or the work of a building practitioner or a plumber. (7) If a person produces a document to an authorised person in accordance with subsection (6)(c), the authorised person may examine the document and make copies of, or take extracts from, the document. (8) If an authorised person exercises a power of entry under this section without the occupier being present the authorised person must, on leaving the building or land, leave a notice setting out— (a) the time of entry; and (b) the purpose of entry; and (c) a description of things done while in or on the building or land; and (d) the time of departure; and (e) the procedure for contacting the authorised person for further details of the entry. -- 97 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 94 Authorised by the Chief Parliamentary Counsel (9) A notice under subsection (8) may be in a form approved by the Authority. 228E Entry for monitoring and other purposes (1) For the purposes of determining whether this Act or the regulations are being complied with or for assisting in the enforcement of the safety of buildings and of building and plumbing standards under this Act, an authorised person may enter and search any building or land at which the authorised person believes on reasonable grounds— (a) a person is conducting a business relating to the building industry or plumbing industry; or (b) a person is keeping a record or document that— (i) is required to be kept by this Act or the regulations; or (ii) may show whether or not this Act or the regulations are being complied with; or (c) building work or plumbing work is being, or has been, carried out. (2) A power under subsection (1) must not be exercised in or on any part of a building that is used for residential purposes unless the authorised person obtains the consent of the occupier of the building. (3) An authorised person may enter and search a building or land under subsection (1) with the assistance of any person necessary to provide technical assistance to the authorised person. -- 98 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 95 Authorised by the Chief Parliamentary Counsel (4) An authorised person who enters and searches any building or land under this section may do all or any of the following— (a) examine any thing found in or on the building or land; (b) examine any building work or plumbing work that has or is being carried out in or on the building or land; (c) seize any thing found in or on the building or land or secure any thing found in or on the building or land against interference, if the authorised person believes on reasonable grounds that the thing is connected with a contravention of this Act or the regulations; (d) take and keep samples of any thing found in or on the building or land, if the authorised person believes on reasonable grounds that the thing is connected with a contravention of this Act or the regulations; (e) require a person to produce any document in or on the building or land for examination and, if the authorised person believes on reasonable grounds that the document is connected with an alleged contravention of this Act or the regulations— (i) examine, make copies or take extracts from the document, or arrange for the making of copies or the taking of extracts; and -- 99 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 96 Authorised by the Chief Parliamentary Counsel (ii) remove the document for so long as is reasonably necessary to make copies or take extracts from the document; (f) make any still or moving image, audio recording or audiovisual recording; (g) bring any equipment onto or into the building or land that the authorised person believes on reasonable grounds is necessary for the examination or processing of things found at the building or land in order to determine whether they are things that may be seized under this section; (h) require by written notice any of the following persons to attend any inspection of plumbing work or building work under this section that was carried out or supervised by that person— (i) a person who is or was a licensed or registered plumber; (ii) a person who is or was a registered building practitioner; (iii) a person to whom a certificate of consent was issued under Division 3A of Part 3. (5) An authorised person exercising the power under subsection (4)(h) may require a person to attend an inspection at a mutually agreed time or if a time is not mutually agreed to at a reasonable time. -- 100 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 97 Authorised by the Chief Parliamentary Counsel (6) A power under subsection (1) relating to a building or land (other than a building used for residential purposes) must be exercised— (a) between the hours of 8 a.m. to 6 p.m.; or (b) when a business conducted at the building or land is open for business; or (c) when building work or plumbing work is being carried out at the building or land; or (d) at any other time with the written consent of the occupier of the building or land. (7) If an authorised person exercises a power of entry under this section without the owner or occupier being present the authorised person must, on leaving the building or land, leave a notice setting out— (a) the time of entry; and (b) the purpose of entry; and (c) a description of things done while in or on the building or land; and (d) the time of departure; and (e) the procedure for contacting the authorised person for further details of the entry. (8) A notice under subsection (7) may be in a form approved by the Authority. -- 101 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 98 Authorised by the Chief Parliamentary Counsel 228F Notice before entry and search under section 228E with consent An authorised person must not enter and search any building under section 228E where consent is required to enter unless, before the occupier consents to the entry and search, the authorised person has informed the occupier— (a) of the purpose of the search; and (b) that the occupier may refuse to give consent to the entry and search or to the seizure of any thing found during the search; and (c) that the occupier may refuse to give consent to the taking of any sample of a thing or any copy or extract from a document found in or on the building during the search; and (d) that the occupier may refuse to produce any document required to be produced for examination; and (e) that any thing seized or taken during the search with the consent of the occupier may be used in evidence in proceedings. 228G Acknowledgement of consent to entry and search under section 228E (1) If an occupier of a building consents to the entry and search of the building by an authorised person under section 228E, the authorised person must, before entering the building, ask the occupier to sign an acknowledgment. -- 102 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 99 Authorised by the Chief Parliamentary Counsel (2) For the purpose of subsection (1), the acknowledgment must state— (a) that the occupier has been informed— (i) of the purpose of the search; and (ii) that the occupier may refuse to give consent to the entry and search or to the seizure of any thing found during the search; and (iii) that the occupier may refuse to give consent to the taking of any sample of a thing or any copy or extract from a document found in or on the building during the search; and (iv) that the occupier may refuse to produce any document required to be produced for examination; and (v) that any thing seized or taken during the search with the consent of the occupier may be used in evidence in proceedings; and (b) that the occupier has consented to the entry and search; and (c) the date and time that the occupier consented. (3) If an occupier of a building consents to the seizure or taking of any thing during a search of the building by an authorised person, the authorised person must, before seizing or taking the thing, ask the occupier to sign an acknowledgement. -- 103 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 100 Authorised by the Chief Parliamentary Counsel (4) For the purposes of subsection (3), the acknowledgment must state— (a) that the occupier has consented to the seizure or taking of the thing; and (b) the date and time that the occupier consented. (5) An authorised person must give a copy of a signed acknowledgement to the occupier before leaving the building. (6) If, in any proceeding, a signed acknowledgment is not produced to the court or a tribunal, it must be presumed, until the contrary is proved, that the occupier did not consent to the entry and search or to the seizure or the taking of the thing. 228H Use or seizure of electronic equipment during search under section 228E (1) If an authorised person, during a search under section 228E— (a) finds a thing in or on the building or land that is or includes a disc, tape or other device for the storage of information; and (b) believes that there is in or on the building or land equipment that may be used with the disc, tape or other storage device; and (c) believes on reasonable grounds that information stored in the disc, tape or other storage device— (i) may be relevant to determine whether this Act or the regulations have been complied with; or -- 104 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 101 Authorised by the Chief Parliamentary Counsel (ii) may assist in enforcement of safety of buildings and of building and plumbing standards under this Act— the authorised person may operate, or may require the occupier of the building or land or an employee of the occupier to operate, the equipment to access the information. (2) If the authorised person believes on reasonable grounds that a disc, tape or other storage device in or on the building or land contains, stores or is otherwise used in the transmission of information that— (a) may be relevant to determine whether this Act or the regulations have been complied with; or (b) may assist in enforcement of safety of buildings and of building and plumbing standards under this Act— the authorised person may— (c) put the information in a documentary form and seize the documents so produced; or (d) copy the information to another disc, tape or other storage device and remove that disc, tape or storage device from the building or land; or (e) if it is not practicable to put the information in a documentary form or to copy the information, seize the disc, tape or other storage device and the equipment that enables the information to be accessed. -- 105 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 102 Authorised by the Chief Parliamentary Counsel (3) An authorised person must not operate or seize equipment for a purpose set out in this section unless the authorised person believes on reasonable grounds that the operation can be carried out without damage to the equipment. 228I Entry of building or land open to the public (1) An authorised person may enter and inspect any part of a building or land that is, at the time of the entry and inspection, open to the public. (2) An authorised person who exercises a power of entry of a building or land under subsection (1) may, to the extent that it is reasonably necessary to determine compliance with this Act or the regulations, require a person at the building or land to produce documents to the authorised person. (3) If a person produces a document to an authorised person in accordance with a requirement under this section, the authorised person may make copies of, or take extracts from, the document. 228J Entry in emergency (1) Despite any other power of entry under this Subdivision, an authorised person may enter a building or land without a search warrant at any time if— (a) the safety of the public or the occupants of the building or land is at risk; or (b) an emergency order under Part 8 applies to the building or land; or -- 106 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 103 Authorised by the Chief Parliamentary Counsel (c) an emergency plumbing order under section 221ZZF applies to the building or land. (2) An authorised person may enter and search a building or land under subsection (1) with the assistance of any other person necessary to provide technical assistance to the authorised person. Note Under section 229H an authorised person may also request the assistance of a member of the police force. (3) If an authorised person, after entering a building or land under subsection (1), considers that a thing in or on the building or land presents a risk to the life, safety or health of any person or poses a risk of significant damage to any property the authorised person may do all or any of the following— (a) seize the thing; (b) secure the seized thing against interference; (c) require the occupier to remove the thing; (d) examine, take and keep samples of the thing. (4) In addition to the powers under subsection (3), if the authorised person believes on reasonable grounds that it is necessary to do so, the authorised person may do all or any of the following— (a) in the case of any document in or on the building or land— (i) require a person to produce the document for examination; -- 107 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 104 Authorised by the Chief Parliamentary Counsel (ii) examine, make copies or take extracts from the document, or arrange for the making of copies or the taking of extracts; (iii) remove the document for so long as is reasonably necessary to make copies or take extracts from the document; (b) make any still or moving image, audio image or audiovisual recording. (5) If an authorised person exercises a power of entry under this section in the absence of the owner or occupier the authorised person must, if reasonably practicable, on leaving the building or land, leave a notice setting out— (a) the time of entry; and (b) the purpose of entry; and (c) a description of things done while at the building or land; and (d) the time of departure; and (e) the procedure for contacting the authorised person for further details of the entry. 228K Entry with warrant for monitoring buildings or land used for residential purposes (1) An authorised person may apply to a magistrate for the issue of a warrant authorising the authorised person to enter a building or land used for residential purposes if the authorised person believes on reasonable grounds that entry to the building or land is necessary— -- 108 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 105 Authorised by the Chief Parliamentary Counsel (a) to determine whether a building, building work or plumbing work complies with this Act or the regulations; or (b) to assist in the enforcement of safety of buildings and of building and plumbing standards under this Act. (2) The magistrate may issue a warrant under subsection (1) if the magistrate is satisfied— (a) by the evidence, on oath or by affidavit, of the matters set out in subsection (1); and (b) that entry is warranted in all the circumstances. 228L Form and content of warrant (1) A warrant issued under section 228K(2) may authorise an authorised person named in the warrant— (a) to enter and inspect the building or land; or (b) to examine any thing found at the building or land; or (c) to take photographs (including video recordings) or make sketches of any thing at the building or land; or (d) to the extent that it is reasonably necessary to determine whether this Act or the regulations have been complied with or to assist in the enforcement of safety of buildings and of building and plumbing standards under this Act, to do any one or more of the following— -- 109 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 106 Authorised by the Chief Parliamentary Counsel (i) take and keep samples of any thing, if the authorised person believes on reasonable grounds that the thing is connected with a contravention of this Act or the regulations; (ii) require the occupier of the building or land to produce any document to the authorised person and if the authorised person believes on reasonable grounds that the document is connected with a contravention of this Act or the regulations— (A) examine, copy or take extracts from the document, or arrange for the making of copies or the taking of extracts; and (B) remove the document for so long as is reasonably necessary to make copies or take extracts from the document. (2) A warrant issued under section 228K(2) must state— (a) the purpose for which the warrant is required; and (b) the building or land to be inspected; and (c) any conditions to which the warrant is subject; and (d) that the entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and -- 110 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 107 Authorised by the Chief Parliamentary Counsel (e) a day, not later than 28 days after the issue of the warrant, on which the warrant ceases to have effect. 228M Entry with search warrant to find evidence of contravention (1) An authorised person may apply to a magistrate for the issue of a search warrant in relation to a particular building or land if the authorised person suspects on reasonable grounds that— (a) there is, or may be within the next 72 hours, in the building or on the land evidence that a person may have contravened this Act or the regulations; or (b) there is evidence in digital or electronic format that a person may have contravened this Act or the regulations that is accessible from the building or land. (2) If a magistrate is satisfied by the evidence, on oath or by affidavit, that there are reasonable grounds to suspect that— (a) there is, or may be within the next 72 hours, in the building or on the land a thing, or thing of a particular kind, connected with a contravention of this Act or the regulations; or (b) there is information in digital or electronic format connected with a contravention of this Act or the regulations that is accessible from the building or land— the magistrate may issue the search warrant in accordance with the Magistrates' Court Act 1989. -- 111 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 108 Authorised by the Chief Parliamentary Counsel 228N Form and content of search warrants (1) A search warrant issued under section 228M(2) may authorise an authorised person named in the warrant to enter a building or land specified in the warrant, if necessary by force, and to do any of the following— (a) if the authorised person believes on reasonable grounds that a thing, or thing of a particular kind, named or described in the warrant is connected with the alleged contravention— (i) search for the thing; or (ii) seize the thing; or (iii) secure the thing against interference; or (iv) examine, inspect and take and keep samples of the thing; (b) in the case of any document, or a document of a particular kind, named or described in the warrant, if the authorised person believes on reasonable grounds that the document is connected with the alleged contravention— (i) require a person to produce the document for inspection; or (ii) examine, make copies or take extracts from the document, or arrange for the making of copies or the taking of extracts; or (iii) remove the document for so long as is reasonably necessary to make copies or take extracts from the document; -- 112 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 109 Authorised by the Chief Parliamentary Counsel (c) make an image of the hard drive of a computer, or a computer of a particular kind, named or described in the warrant, if the authorised person believes on reasonable grounds that information contained on the hard drive is connected with the alleged contravention; (d) in the case of information in electronic or digital format described in the warrant that is accessible from the premises, if the authorised person believes on reasonable grounds that the information is connected with the alleged contravention— (i) access the information via any computer or other electronic device located on the premises; or (ii) download or make an electronic copy of that information; or (iii) make or produce a physical copy of that information; (e) make any still or moving image, audio recording or audiovisual recording of any thing of a particular kind named or described in the warrant, if the authorised person believes on reasonable grounds that it is connected with the alleged contravention. (2) A search warrant issued under section 228M(2) may authorise, in addition to an authorised person, any other person named or otherwise identified in the warrant to execute the warrant. -- 113 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 110 Authorised by the Chief Parliamentary Counsel (3) A search warrant issued under section 228M(2) must state— (a) the purpose for which the search is required and the nature of the alleged contravention; and (b) the building or land to be searched; and (c) a description of the thing or document for which the search is to be made; and (d) any conditions to which the warrant is subject; and (e) whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and (f) a day, not later than 28 days after the issue of the warrant, on which the warrant ceases to have effect. (4) Except as provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 extend and apply to warrants issued under section 228M(2). 228O Seizure of things not mentioned in the warrant A search warrant issued under section 228M(2) authorises an authorised person named in the warrant, in addition to the seizure of any thing of the kind described in the warrant, to seize or take a sample of any thing which is not of the kind described in the warrant if— -- 114 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 111 Authorised by the Chief Parliamentary Counsel (a) the authorised person believes on reasonable grounds that the thing— (i) is of a kind which could have been included in a search warrant issued under section 228M(2); and (ii) will afford evidence about a contravention of this Act or the regulations; and (b) in the case of the seizure of a thing, the authorised person believes on reasonable grounds that it is necessary to seize that thing in order to prevent its concealment, loss or destruction or its use in the contravention of this Act. 228P Warrant may authorise the giving of a direction requiring assistance from person with knowledge of a computer or other electronic device (1) This section applies if a magistrate is satisfied by evidence, on oath or by affidavit, that there are reasonable grounds to believe that there is information in digital or electronic format connected with a contravention of this Act or the regulations that is accessible from a particular building or land. (2) Subject to subsection (3), a warrant issued by the magistrate under section 228M(2) may authorise the authorised person named in the warrant to require a person to provide any information or assistance that is reasonable and necessary to allow the authorised person or another person to do one or more of the following things— -- 115 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 112 Authorised by the Chief Parliamentary Counsel (a) access information held in, or accessible from, any computer or other electronic device located on the premises; (b) download or make an electronic copy of that information; (c) make or produce a physical copy of that information. (3) The authorised person may require a person to provide the information or assistance referred to in subsection (2) if the person— (a) is one of the following— (i) the person alleged to have contravened this Act or the regulations; (ii) the owner or lessee of the computer or other electronic device; (iii) an employee of the owner or lessee of the computer or other electronic device; (iv) a person engaged under a contract for services by the owner or lessee of the computer or other electronic device; and (b) has relevant knowledge of— (i) the computer or other electronic device or a computer network of which the computer or device forms or formed part; or (ii) measures applied to protect information held in, or accessible from, the computer or other electronic device. -- 116 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 113 Authorised by the Chief Parliamentary Counsel 228Q Announcement before entry (1) Before executing a warrant issued under section 228K(2) or 228M(2), the authorised person named in the warrant or a person assisting the authorised person— (a) must announce that the person is authorised by the warrant to enter the building or land; and (b) give any person at the building or land an opportunity to allow entry to the building or land. (2) The authorised person or a person assisting the authorised person is not required to comply with subsection (1) if the person believes on reasonable grounds that immediate entry to the building or land is required to ensure— (a) the safety of any person; or (b) that the effective execution of the warrant is not frustrated. 228R Copy of warrant to be given to occupier If the occupier or another person who apparently represents the occupier is present at a building or land when a warrant issued under section 228K(2) or 228M(2) is being executed, the authorised person must— (a) produce the authorised person's identity card for inspection by that person; and (b) give to that person a copy of the execution copy of the warrant. -- 117 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 114 Authorised by the Chief Parliamentary Counsel Subdivision 6—Provisions relating to powers under this Division 229 Powers of authorised person to require information when exercising power of entry An authorised person who exercises a power of entry of a building or land under Subdivision 5 may, to the extent that it is reasonably necessary to determine compliance with this Act or the regulations, require a person at the building or land— (a) to give information to the authorised person, orally or in writing; and (b) to give reasonable assistance to the authorised person. 229A Receipt must be given for any thing seized (1) An authorised person must not seize a thing under this Division apparently in the possession or custody of a person unless the authorised person makes out and tenders to the person a receipt for the thing seized that— (a) identifies the thing; and (b) states the name of the authorised person and the reason why the thing is being seized. (2) If an authorised person is unable to discover the identity of— (a) the lawful owner of a thing seized; or -- 118 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 115 Authorised by the Chief Parliamentary Counsel (b) the person from whose custody a thing is seized— the authorised person must leave the receipt with, or post it to, the owner of the building or land from which the thing was seized. 229B Certified copies of seized documents (1) If an authorised person retains possession of a document seized from a person under this Division, the authorised person must give the person, as soon as practicable after the seizure, a copy of the document certified as correct by the authorised person. (2) A copy of a document certified under subsection (1) is to be received in all courts and tribunals to be evidence of equal validity to the original. 229C Retention and return of seized documents or things (1) If an authorised person seizes a document or other thing under this Division, the authorised person must take reasonable steps to return the document or thing to the person from whom it was seized if the reason for its seizure no longer exists. (2) If the document or thing seized has not been returned within 3 months after it was seized, the authorised person must take reasonable steps to return it unless— (a) proceedings for the purpose for which the document or thing was retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or -- 119 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 116 Authorised by the Chief Parliamentary Counsel (b) the Magistrates' Court makes an order under section 229D extending the period during which the document or thing may be retained. (3) This section does not apply to a sample taken by an authorised person in the exercise of a power under this Division. 229D Magistrates' Court may extend 3 month period for retention of document or thing (1) If an authorised person seizes a document or other thing under this Division, the authorised person may apply to the Magistrates' Court for an order for an extension, not exceeding 3 months, of the period for which the authorised person may retain the document or thing. (2) An application under subsection (1) must be made— (a) within 3 months after seizing a document or other thing under this Division; or (b) if an extension has been granted under this section, before the end of the period of the extension. (3) The Magistrates' Court may make the order if it is satisfied that— (a) it is in the interests of justice; and (b) the total period of retention does not exceed 12 months; and -- 120 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 117 Authorised by the Chief Parliamentary Counsel (c) retention of the document or other thing is necessary— (i) for the purposes of an investigation into whether a contravention of this Act or the regulations has occurred; or (ii) to enable evidence of a contravention of this Act or the regulations to be obtained for the purposes of a proceeding under this Act. (4) At least 7 days prior to the hearing of an application under this section, notice of the application must be sent to the owner of the document or thing described in the application. 229E Taking samples (1) If an authorised person proposes to take a sample in the exercise of a power under this Division, the authorised person must advise the person in possession of the sample of the reason why the sample is being taken. (2) The authorised person, at the request of the person from whom the sample was taken, must give part of the sample taken to that person. (3) If an authorised person takes a sample in the exercise of a power under this Division, the authorised person must return the sample to the person from whom it was taken within 28 days after the sample was taken, if the sample is not required for the purposes of proceedings under this Act or the regulations. -- 121 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 118 Authorised by the Chief Parliamentary Counsel 229F Refusal or failure to comply with requirement A person must not, without reasonable excuse, refuse or fail to comply with a requirement of an authorised person exercising a power under this Division. Penalty: 60 penalty units, in the case of a natural person; 300 penalty units, in the case of a body corporate. 229G Protection against self-incrimination (1) It is a reasonable excuse for a natural person to refuse or fail to give information, including information required to be given under section 246(2), or do any other thing that the person is required to do by or under this Division, if the giving of the information or the doing of that other thing would tend to incriminate the person. (2) Despite subsection (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce by or under this Division, if the production of the document would tend to incriminate the person. (3) Despite subsection (1), it is not a reasonable excuse for a natural person to refuse or fail to provide information or assistance that a person is required under section 228P to provide, if the provision of the information or assistance would tend to incriminate the person. -- 122 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 119 Authorised by the Chief Parliamentary Counsel 229H Police to assist authorised persons An authorised person exercising a power under this Division may request the assistance of a member of the police force who may assist the authorised person to take any action authorised by this Division. 229I Impersonation of authorised person A person must not impersonate an authorised person carrying out a function under this Part. Penalty: 60 penalty units. 229J Confidentiality (1) An authorised person must not give to any other person, whether directly or indirectly, any information gained in the exercise of powers as an authorised person under this Part. Penalty: 60 penalty units. (2) Despite subsection (1), information may be given— (a) to the extent necessary— (i) to carry out functions under this Act or the regulations; or (ii) in connection with the administration or enforcement of this Act or the regulations; or (iii) to give any information the authorised person is authorised, permitted or required to give under this Act or any other Act or the regulations under this Act; or -- 123 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 120 Authorised by the Chief Parliamentary Counsel (b) for the purpose of any legal proceedings arising out of this Act or the regulations, or of any report of those proceedings; or (c) with the consent of the Minister. Subdivision 7—Complaints and register of entry powers 230 Register of exercise of powers of entry (1) The Authority must keep a register containing the prescribed information relating to the exercise of a power of entry under Subdivision 5 by any of the following authorised persons referred to in section 228— (a) a VBA inspector; (b) a compliance auditor appointed under Part 12A; (c) a plumbing inspector appointed under Part 12A. (2) A council must keep a register containing the prescribed information relating to the exercise of a power of entry under Subdivision 5 by any of the following authorised persons referred to in section 228— (a) a municipal building surveyor of that council or a person authorised by a municipal building surveyor of that council to act on behalf of the municipal building surveyor; -- 124 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 121 Authorised by the Chief Parliamentary Counsel (b) a relevant building surveyor, who is a municipal building surveyor, or a person authorised by the relevant building surveyor to act on behalf of the relevant building surveyor. (3) Energy Safe Victoria must keep a register containing the prescribed information relating to the exercise of a power of entry under Subdivision 5 by a person acting on behalf of Energy Safe Victoria. (4) A relevant building surveyor, who is a private building surveyor, must keep a register containing the prescribed information relating to the exercise of a power of entry under Subdivision 5 by the relevant building surveyor or a person authorised by the relevant building surveyor to act on behalf of the relevant building surveyor. (5) The Authority may inspect a register required to be kept by a person under this section. (6) The occupier of a building or land, in respect of which a power of entry under Subdivision 5 has been exercised, may request that the person required to keep a register under this section containing information about the exercise of that power provides an extract to the occupier of that information. (7) A person required to keep a register under this section must— (a) keep the prescribed information relating to each exercise of a power of entry under Subdivision 5 for 10 years after the date of that entry; and -- 125 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 122 Authorised by the Chief Parliamentary Counsel (b) make the register available for inspection by the Authority on the request of the Authority at a time agreed to between the person and the Authority; and (c) provide an extract under subsection (6) if so requested. 231 Complaints to the Authority Any person may complain to the Authority about the exercise of a power— (a) under Subdivision 2, by the Authority; or (b) under this Division, by any of the following authorised persons— (i) a VBA inspector; (ii) a compliance auditor or a plumbing inspector appointed under Part 12A; (iii) a relevant building surveyor, who is a private building surveyor; (iv) a relevant building surveyor, who is a municipal building surveyor; (v) a person authorised by a relevant building surveyor to act on behalf of the relevant building surveyor. 232 Complaints to a council Any person may complain to a council about the exercise of a power under this Division by a municipal building surveyor of that council or a person authorised by the municipal building surveyor to act on behalf of the municipal building surveyor. -- 126 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 123 Authorised by the Chief Parliamentary Counsel 233 Complaints to Energy Safe Victoria Any person may complain to Energy Safe Victoria about the exercise of a power— (a) under Subdivision 2 by Energy Safe Victoria; or (b) under this Division by a person authorised to act on behalf of Energy Safe Victoria. 234 Complaints relating to the chief officer (1) Any person may complain to the Country Fire Authority within the meaning of the Country Fire Authority Act 1958 about the exercise of a power under this Division— (a) by the chief officer within the meaning of that Act; or (b) by a person authorised by the chief officer to act on behalf of the chief officer under section 228(1) or (3). (2) Any person may complain to the Metropolitan Fire and Emergency Services Board established under the Metropolitan Fire Brigades Act 1958 about the exercise of a power under this Division— (a) by the chief officer within the meaning of that Act; or (b) by a person authorised by the chief officer to act on behalf of the chief officer under section 228(1) or (3). 234A Investigation and report If a person receives a complaint under this Division, the person must— (a) consider the complaint; and -- 127 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 124 Authorised by the Chief Parliamentary Counsel (b) give a written report to the complainant of the person's consideration of the complaint.". 47 Insertion of Subdivision heading in Division 2A of Part 13 Before section 234B in Division 2A of Part 13 of the Building Act 1993 insert the following heading— "Subdivision 1—Undertakings". 48 Insertion of new Subdivision 2 in Division 2A of Part 13 After section 234D of the Building Act 1993 insert— "Subdivision 2—Injunctions 234E Injunctions (1) A court may grant an injunction, in such terms as the court considers appropriate, if the court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute— (a) a contravention of a provision of this Act or of the regulations or of a notice, permit, direction, order or determination issued or made under this Act or the regulations (including a notice or order or determination of the Building Appeals Board); or (b) attempting to contravene such a provision; or (c) aiding, abetting, counselling or procuring a person to contravene such a provision; or -- 128 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 125 Authorised by the Chief Parliamentary Counsel (d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision; or (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or (f) conspiring with others to contravene such a provision. (2) The court may grant the injunction on application by— (a) the Authority; or (b) a municipal building surveyor; or (c) Energy Safe Victoria; or (d) any other prescribed person. (3) An application for an injunction under subsection (1) may be made ex parte. (4) The power of the court to grant an injunction under subsection (1) restraining a person from engaging in conduct may be exercised— (a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of a kind referred to in that subsection; and (b) whether or not the person has previously engaged in conduct of that kind; and (c) whether or not there is an imminent danger of substantial damage to any other person if the person engages in conduct of that kind. -- 129 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 126 Authorised by the Chief Parliamentary Counsel (5) Without limiting subsection (1), the Supreme Court may grant an injunction under subsection (1) restraining a person from carrying on a business as a building practitioner or a plumber or supplying goods or services used in building work or plumbing work (whether or not as part of, or incidental to, the carrying on of another business)— (a) for a specified period; or (b) except on specified terms and conditions. (6) Without limiting subsection (1), the court may grant an injunction under that subsection requiring a person to do any of the following— (a) institute a training program for the person's employees in relation to compliance with this Act and the building regulations; (b) carry out building work, protection work, plumbing work or other work; (c) transfer property; (d) pay money, including the payment of money into court in relation to building work carried out, or to be carried out, under this Act by a municipal building surveyor; (e) destroy or dispose of goods that have been or may be used in carrying out building work or plumbing work. -- 130 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 127 Authorised by the Chief Parliamentary Counsel (7) The power of the court to grant an injunction under subsection (1) requiring a person to do an act or thing may be exercised— (a) whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and (b) whether or not the person has previously refused or failed to do that act or thing; and (c) whether or not there is an imminent danger of substantial damage to any other person if the person refuses or fails to do that act or thing. 234F Consent injunctions If an application is made under section 234E, the court may, if it considers that it is appropriate to do so, grant an injunction under this section by consent of all the parties to the proceeding, whether or not the court is satisfied as required by section 234E(1). 234G Interim injunctions If an application is made under section 234E, the court, if it considers that it is desirable to do so, may grant an interim injunction under this section pending the determination of the application. 234H Variation and discharge of injunctions A court may vary or discharge— (a) an injunction that it has granted under section 234E or 234F; or -- 131 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 128 Authorised by the Chief Parliamentary Counsel (b) an interim injunction that it has granted under section 234G. 234I Injunction may be granted during offence proceedings An injunction may be granted under this Subdivision during proceedings for an offence under this Act or the regulations and may be granted instead of or in addition to any penalty imposed in those or any other proceedings. 234J Undertakings as to damages and costs In an application for an injunction under section 234E, if the application has been made by the Authority or a municipal building surveyor or Energy Safe Victoria and if the court has determined to grant an interim injunction, the court must not, as a condition of granting the interim injunction, require the Authority, the municipal building surveyor, Energy Safe Victoria or any other person to give any undertaking as to damages or costs.". 49 Service of documents—generally (1) After section 236(4) of the Building Act 1993 insert— "(4A) An emergency order referred to in section 103, a building notice referred to in section 108(1) or a building order referred to in section 111(3) or (4) may be served on a person by putting the order or notice up in a conspicuous position on the building, land or place of public entertainment to which it applies. -- 132 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 129 Authorised by the Chief Parliamentary Counsel (4B) An order or notice served in accordance with subsection (4A) must include the prescribed additional information. (4C) If a notice or order under Part 8 or Part 12A is to be served on an owner of a lot affected by an owners corporation, the notice or order may be served on the owners corporation and if so served is taken to be served on the owner. (4D) An owners corporation on whom a notice or order is served in accordance with subsection (4C) must not fail to provide a copy of the notice or order to each lot owner affected by the notice or order within a reasonable time of receiving the notice or order. Penalty: 60 penalty units.". (2) After section 236(6) of the Building Act 1993 insert— "(7) A person must not, without the consent of the relevant building surveyor, the relevant council or the Authority, remove or deface an order or notice put up under subsection (4) or (4A). Penalty: 500 penalty units, in the case of a natural person; 2500 penalty units, in the case of a body corporate.". (3) At the end of section 236 of the Building Act 1993 insert— "(8) Without limiting any other provision for the service of documents under this Act, service on a person named in a building permit under section 24A(1)(d) in relation to a body corporate of a direction, notice or order under this Act or the regulations -- 133 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 130 Authorised by the Chief Parliamentary Counsel directed to the body corporate is taken to be service on the body corporate.". 50 Proceedings for offences (1) In section 241(7) of the Building Act 1993, after "this Act" insert "(except proceedings for an offence against section 16B(1) or (3))". (2) For section 241(7) of the Building Act 1993 substitute— "(7) Despite anything in any Act, proceedings for an offence against this Act (except proceedings for an offence against section 16B(1) or (3)) or the regulations may be commenced within the longer of the following periods in relation to an alleged offence— (a) within the period of 3 years after the commission of the alleged offence; (b) in relation to proceedings under subsection (1), within 2 years after the commission of the alleged offence first came to the attention of the relevant council or the Authority; (c) in relation to proceedings under subsection (2A), within 2 years after the commission of the alleged offence first came to the attention of Energy Safe Victoria or the Authority; (d) in relation to any other proceedings under this Act or the regulations, within 2 years after the commission of the alleged offence first came to the attention of the Authority. -- 134 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 131 Authorised by the Chief Parliamentary Counsel (8) Despite subsection (7), proceedings must not be commenced more than 10 years after the commission of an alleged offence.". 51 Offence to hinder or obstruct (1) Insert the following heading to section 244 of the Building Act 1993— "Offence to hinder or obstruct". (2) In section 244 of the Building Act 1993, for "obstruct" substitute "hinder or obstruct". (3) In the penalty at the foot of section 244 of the Building Act 1993, for "5 penalty units" substitute "60 penalty units". 52 Section 246 substituted For section 246 of the Building Act 1993 substitute— "246 Offence to give false or misleading statements or documents (1) A person must not knowingly make any false or misleading statement or provide any false or misleading information to a person or body carrying out any function under this Act or the regulations. Penalty: 60 penalty units, in the case of a natural person; 300 penalty units, in the case of a body corporate. (2) A person must not produce a document, to a person or body carrying out any function under this Act or the regulations, which the person knows to be false or misleading in a material particular without indicating the -- 135 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 132 Authorised by the Chief Parliamentary Counsel respect in which it is false or misleading and, if practicable, providing correct information. Penalty: 60 penalty units, in the case of a natural person; 300 penalty units, in the case of a body corporate.". 53 New section 251A inserted After section 251 of the Building Act 1993 insert— "251A Owners corporation may carry out work (1) This section applies if an order or notice under this Act requires or proposes that the owner of a lot affected by an owners corporation carry out building work, protection work, plumbing work or other work in relation to that lot. (2) If the order or notice is served on the owners corporation under section 236(4C), the owners corporation may make representations under Part 8 or Part 12A (as the case may be) in relation to the notice as if it were the owner of the lot. (3) If the order or notice is served on the owners corporation under section 236(4C), the owners corporation must comply with the order as if it were the owner of the lot. Penalty: 2500 penalty units. (4) An owners corporation may authorise a person to enter a lot or a building on a lot on its behalf to carry out works in accordance with this section. -- 136 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 133 Authorised by the Chief Parliamentary Counsel (5) Section 51 of the Owners Corporations Act 2006 applies in relation to an entry under subsection (4) as if it were an entry under section 50 of that Act. (6) An owners corporation may recover from the owner of the lot as a debt due to the owners corporation the cost of any work carried out under subsection (3) that is not covered by the insurance held by the owners corporation.". 54 Section 253 substituted For section 253 of the Building Act 1993 substitute— "253 Powers of court if requirement of authorised person not complied with (1) Subject to subsection (2), if an authorised person is satisfied that a person has failed, without reasonable excuse, to comply with a requirement under section 227G(1), 228D(6)(c), 228E(4)(e), 228I(2), 228J(4)(a)(i) or 229, the authorised person may apply to a court for an order directing the person to comply with the requirement. (2) The authorised person must not make an application under subsection (1) if the person to whom the failure relates has been charged with an offence against section 229F. (3) On an application under subsection (1), the court may— (a) order the person to comply with the requirement within a period specified in the order; and (b) make any other orders it considers appropriate. -- 137 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 134 Authorised by the Chief Parliamentary Counsel (4) If a proceeding is brought under this section in relation to a failure to comply with a requirement, a person to whom the failure relates cannot be charged with an offence under section 229F in relation to that failure.". 55 New section 259AB inserted After section 259A of the Building Act 1993 insert— "259AB Information sharing (1) The Authority may enter into, or approve of, an arrangement (an information sharing arrangement) with a relevant agency for the purpose of sharing or exchanging information held by the Authority and the relevant agency. (2) The information to which an information sharing arrangement may relate is limited to the following— (a) information concerning investigations, law enforcement, assessment of complaints, registration or disciplinary matters; (b) probity assessments and reference checks concerning persons who carry out or propose to carry out building work or plumbing work; (c) any other information affecting the users of the services of building practitioners or plumbers; (d) any other information of a prescribed kind. -- 138 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 135 Authorised by the Chief Parliamentary Counsel (3) Under an information sharing arrangement, the Authority and the relevant agency are authorised— (a) to request and receive information held by the other party to the arrangement; and (b) to disclose information to the other party— but only to the extent that the information is reasonably necessary to assist in the exercise of functions under this Act or the functions of the relevant agency concerned. (4) Without limiting subsection (3), the Authority may also (whether as part of an information sharing arrangement or otherwise)— (a) refer any matter (including any complaint) with respect to building work, plumbing work or architectural services to a building regulator or law enforcement agency; or (b) receive any matter of a type described in paragraph (a) from a building regulator or law enforcement agency; or (c) conduct a joint investigation into any such matter with a building regulator or law enforcement agency. (5) Any building regulator or law enforcement agency referred to in subsection (4) is, despite any other Act or law of the State, authorised to refer a matter referred to in subsection (4) to the Authority or to conduct an investigation into the matter jointly with the Authority. -- 139 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 136 Authorised by the Chief Parliamentary Counsel (6) This section does not limit— (a) the powers of the Authority under this Act; or (b) the operation of any other Act under which a relevant agency is authorised or required to disclose information to another person or body; or (c) the giving of information— (i) to a court or tribunal in the course of legal proceedings; or (ii) pursuant to an order of a court or tribunal; or (iii) to the extent reasonably required to enable the investigation or the enforcement of a law of the State or of any other State or Territory or of the Commonwealth; or (iv) with the written authority of the Secretary; or (v) with the written authority of the person to whom the information relates. (7) In this section— building regulator means a municipal council or an agency of the Commonwealth or of a State or Territory or of another jurisdiction that carries out functions under an enactment in relation to building, plumbing or architecture; -- 140 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 137 Authorised by the Chief Parliamentary Counsel law enforcement agency means— (a) the police force of Victoria or the police force of another State or Territory or of an overseas jurisdiction; or (b) the Australian Federal Police; or (c) the Australian Crime Commission; or (d) any other authority or person responsible for the investigation or prosecution of offences against the laws of the State or of the Commonwealth, another State or Territory or an overseas jurisdiction; plumbing work has the same meaning as in section 221C; relevant agency means— (a) a building regulator; or (b) a law enforcement agency; or (c) the Secretary; or (d) the Director of Consumer Affairs Victoria; or (e) the Victorian WorkCover Authority; or (f) the Architects Registration Board of Victoria established under Part 6 of the Architects Act 1991; or (g) the Victorian Managed Insurance Authority; or (h) an agency of the Commonwealth; or -- 141 of 197 -- Part 3—Enforcement, building permits and building surveyors Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 138 Authorised by the Chief Parliamentary Counsel (i) a council; or (j) the Commissioner of State Revenue referred to in section 62 of the Taxation Administration Act 1997; or (k) any other agency of the State or of the Commonwealth, another State or a Territory or an overseas jurisdiction; or (l) any other person or body that exercises functions in the public interest that involve protecting the interests of users of services of building practitioners, plumbers or architects.". 56 General regulation-making powers (1) After section 261(1)(ea) of the Building Act 1993 insert— "(eb) prescribing classes of building practitioner;". (2) In section 261(1)(n) of the Building Act 1993— (a) after "documents" (where twice occurring) insert "or information"; (b) after "and bodies" insert "and the public". -- 142 of 197 -- Part 4—Building permit numbers and levies Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 139 Authorised by the Chief Parliamentary Counsel Part 4—Building permit numbers and levies 57 Definition In section 3(1) of the Building Act 1993 insert— "building permit number means a building permit number issued by the Authority under section 25BA for a proposed building permit;". 58 New section 18AA inserted After section 18 of the Building Act 1993 insert— "18AA Relevant building surveyor must apply for building permit number for building permit (1) On accepting an application for a building permit in relation to building work, the relevant building surveyor must apply to the Authority for a building permit number for the proposed building permit. (2) An application under subsection (1) must— (a) be in writing in the form (if any) approved by the Authority; and (b) include the cost of the proposed building work estimated by the relevant building surveyor under section 205I; and (c) include the estimate of the amount of building levy payable estimated by the relevant building surveyor under section 205I; and (d) include the prescribed information relating to the proposed building permit and building work to which the permit relates. -- 143 of 197 -- Part 4—Building permit numbers and levies Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 140 Authorised by the Chief Parliamentary Counsel (3) The relevant building surveyor may consider the application pending the issue of the building permit number for the building permit.". 59 Consequential amendments relating to building permit levies (1) In section 18A(2)(a)(iii) of the Building Act 1993, for "section 205H(3)(b) or (c)" substitute "section 205HA". (2) In section 18B(3)(f) of the Building Act 1993, for "value" substitute "cost". 60 New section 18C inserted After section 18B of the Building Act 1993 insert— "18C Further notice to Commissioner of State Revenue (1) This section applies if— (a) a relevant building surveyor has given a notice to the Commissioner of State Revenue under section 18B(2) relating to an application for a building permit described in section 18B(1)(a); and (b) the relevant building surveyor receives a notice from the Authority under section 205LB(1)(b) stating that the estimated cost of building work relating to the application has increased; and (c) the increase in the estimated cost of building work means that the application is no longer an excluded event (within the meaning of section 201RB of the Planning and Environment Act 1987); and -- 144 of 197 -- Part 4—Building permit numbers and levies Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 141 Authorised by the Chief Parliamentary Counsel (d) none of the circumstances described in section 201SA of the Planning and Environment Act 1987 applies to the land on which the building work is to be carried out. (2) The relevant building surveyor must give a further notice of the application to the Commissioner of State Revenue containing the following information— (a) a description of the land on which the building work is being or is to be carried out; (b) a description of the building work specified in the application and the purpose of the building work; (c) the date the application was made; (d) the applicant's name and contact details; (e) the name and contact details of any owner of the land, if the applicant is not the owner; (f) the cost of the building work estimated under Subdivision 4A of Division 2 of Part 12. (3) A notice under subsection (2) must be given within 10 business days after the relevant building surveyor receives the notice under section 205LB(1)(b) from the Authority.". 61 Amendment to heading of Division 3 of Part 3 In the heading to Division 3 of Part 3 of the Building Act 1993, after "permits" insert "and other matters". -- 145 of 197 -- Part 4—Building permit numbers and levies Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 142 Authorised by the Chief Parliamentary Counsel 62 New section 23A inserted After section 23 of the Building Act 1993 insert— "23A Offences relating to the issue of a building permit (1) The relevant building surveyor must not issue a building permit unless the Authority has issued a building permit number for that building permit. Penalty: 500 penalty units, in the case of a natural person; 2500 penalty units, in the case of a body corporate. (2) The relevant building surveyor must not issue a building permit unless the permit specifies— (a) the building permit number issued by the Authority for that building permit; and (b) any other information required by the regulations to be specified in the building permit. Penalty: 10 penalty units, in the case of a natural person; 50 penalty units, in the case of a body corporate.". -- 146 of 197 -- Part 4—Building permit numbers and levies Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 143 Authorised by the Chief Parliamentary Counsel 63 New Division 3AA of Part 3 inserted After Division 3 of Part 3 of the Building Act 1993 insert— "Division 3AA—Issue of building permit number by the Authority 25BA Issue of building permit number (1) The Authority must issue a building permit number for a proposed building permit on receiving an application from the relevant building surveyor under section 18AA if— (a) the relevant building surveyor has given to the Authority all of the information required under section 18AA in relation to the proposed building permit; and (b) the Authority has been paid the whole amount of the building permit levy determined under section 205I in relation to the proposed building work. (2) A building permit number may be issued in the prescribed manner (if any). 25BB Authority may refuse to issue building permit number The Authority may refuse to issue a building permit number if— (a) the relevant building surveyor has not given the Authority all of the information required under section 18AA in relation to the proposed building permit; or -- 147 of 197 -- Part 4—Building permit numbers and levies Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 144 Authorised by the Chief Parliamentary Counsel (b) the Authority has not been paid the whole amount of the building permit levy determined under section 205I in relation to the proposed building work. 25BC Authority must decide to issue building permit number within prescribed period (1) The Authority must issue or refuse to issue a building permit number within the prescribed period after receiving the information and the building permit levy required under section 25BA(1). (2) The Authority is taken to have refused to issue a building permit number if it has not made a decision to issue or refuse to issue a building permit number in accordance with subsection (1). (3) In this section— prescribed period means the longer of— (a) the period prescribed by the regulations (if any); or (b) 5 business days. 25BD Authority must notify applicant of refusal to issue building permit number (1) If the Authority refuses to issue a building permit number for a building permit, it must give written notice to the applicant for the building permit of— (a) the refusal; and (b) the reasons for the refusal; and (c) the applicant's right to apply to VCAT for review of the decision to refuse to issue the building permit number. -- 148 of 197 -- Part 4—Building permit numbers and levies Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 145 Authorised by the Chief Parliamentary Counsel (2) Subsection (1) does not apply if the Authority is taken to have refused to issue the building permit number under section 25BC(2). (3) The Authority must give a copy of a notice under subsection (1) to the relevant building surveyor. 25BE Authority must notify council of issue of building permit number After issuing a building permit number under this Division for a building permit for building work to be carried out in or on a building or land, the Authority must, without delay, provide the relevant council with— (a) the building permit number; and (b) the information given to the Authority by the relevant building surveyor under section 18AA in relation to the application for the building permit number. 25BF Review by VCAT of refusal to issue building permit number An applicant for a building permit may apply to VCAT for review of a refusal by the Authority to issue a building permit number for the building permit under section 25BB.". 64 Functions of the Authority For section 197(j) of the Building Act 1993 substitute— "(j) to collect the building permit levy;". -- 149 of 197 -- Part 4—Building permit numbers and levies Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 146 Authorised by the Chief Parliamentary Counsel 65 Payments into Building account For section 205A(1)(c) of the Building Act 1993 substitute— "(c) the following amounts— (i) any amounts received by the Authority under Subdivision 4 of Division 2 on account of the building permit levy; (ii) any amounts received by the Authority under Subdivision 4A or 4B of Division 2 on account of the building permit levy, any penalty levy imposed by the Authority under those Subdivisions and any costs charged by the Authority under section 205LJ(1); and". 66 Building permit levy must be paid (1) In section 205G(1) and (2) of the Building Act 1993, for "is sought" substitute "is required". (2) For section 205G(3), (4) and (5) of the Building Act 1993 substitute— "(3) A building permit levy is not payable if the cost of the building work (including the cost of labour and materials) is $10 000 or less.". 67 New section 205GA inserted After section 205G of the Building Act 1993 insert— "205GA Applicant must pay building permit levy The applicant for a building permit, or a person acting on behalf of the applicant, must pay to the Authority the amount of building permit levy calculated under section 205I before the building permit is issued.". -- 150 of 197 -- Part 4—Building permit numbers and levies Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 147 Authorised by the Chief Parliamentary Counsel 68 Section 205H substituted and new section 205HA inserted For section 205H of the Building Act 1993 substitute— "205H Building permit application must contain information about cost of building work (1) An application for a building permit must— (a) specify the contract price for the building work (including the cost of labour and materials), if there is a contract for the building work; or (b) in any other case, include sufficient information to enable the relevant building surveyor to estimate the cost of the building work (including the cost of labour and materials). (2) The requirements of subsection (1) are in addition to any other requirements under this Act or the regulations in relation to applications for building permits. 205HA Relevant building surveyor must refuse permit in certain circumstances Without limiting the circumstances in which a relevant building surveyor may refuse to issue a building permit under Part 3, the relevant building surveyor must refuse an application for a building permit if the relevant building surveyor is satisfied— (a) that the contract price for the building work specified in the application is substantially lower than the price normally payable under contracts for building work of that kind; or -- 151 of 197 -- Part 4—Building permit numbers and levies Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 148 Authorised by the Chief Parliamentary Counsel (b) that the application— (i) does not comply with section 205H(1)(b); or (ii) contains a statement about the cost of the building work that is false or misleading in a material particular.". 69 Substitution of sections 205J and 205K and insertion of section 205KA For sections 205J and 205K of the Building Act 1993 substitute— "205J Offence for person not to remit levy to Authority (1) A person who receives an amount of money on account of the building permit levy must remit that amount of money to the Authority within the prescribed period after receiving that money. Penalty: 120 penalty units, in the case of a natural person; 600 penalty units, in the case of a body corporate. (2) In this section— prescribed period means the longer of— (a) the period prescribed by the regulations (if any); or (b) 5 business days. 205K Authority may recover unpaid levy The Authority may recover from a person required to pay an amount of building permit levy to the Authority under section 205GA that amount in a court of competent jurisdiction as a debt due to the Authority. -- 152 of 197 -- Part 4—Building permit numbers and levies Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 149 Authorised by the Chief Parliamentary Counsel 205KA Authority must be notified of increased building costs (1) This section applies if, after the issue of a building permit in relation to the carrying out of building work in or on a building or land, a variation has been made to the building work which has resulted in an increase in the cost of the building work estimated under section 205I by at least the prescribed amount. (2) If the variation to the building work is not related to an amendment of the building permit, the owner of the building or land must give written notice to the Authority of the revised final cost of the building work within 28 days after the owner becomes aware of the increase in cost. (3) If the variation to the building work is related to an amendment of the building permit, the applicant for the amendment to the building permit must give written notice to the Authority of the revised final cost of the building work within 28 days after the applicant becomes aware of the increase in cost. (4) In this section— prescribed amount means the greater of— (a) the amount prescribed by the regulations (if any); or (b) $15 625. Note Under Subdivision 4A the Authority may reassess and charge an additional amount of building permit levy and also impose a penalty levy if subsection (2) or (3) is not complied with.". -- 153 of 197 -- Part 4—Building permit numbers and levies Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 150 Authorised by the Chief Parliamentary Counsel 70 New Subdivisions 4A and 4B inserted in Division 2 of Part 12 After Subdivision 4 of Division 2 of Part 12 of the Building Act 1993 insert— "Subdivision 4A—Reassessments of levy by the Authority after permit issued 205L Authority may reassess levy after building permit issued (1) The Authority may reassess the amount of building permit levy required to be paid in relation to building work after a building permit for that work has been issued because— (a) of a variation made to the building work which has resulted in an increase in the estimated cost of the building work; or (b) the estimate under section 205I by the relevant building surveyor of the cost of the building work was incorrect; or (c) the Authority considers that the information provided by the applicant in the application for the building permit required under section 205H(1) was incorrect or misleading. (2) An amount of building permit levy reassessed under this section is to be calculated on the cost of the building work in accordance with section 205G. (3) The Authority may reassess an amount of building permit levy under subsection (1) no later than 5 years after the later of the following— -- 154 of 197 -- Part 4—Building permit numbers and levies Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 151 Authorised by the Chief Parliamentary Counsel (a) the issue of an occupancy permit required by the building permit; (b) a certificate of final inspection for the building work; (c) the date of practical completion of the building work. 205LA Authority must take into account matters in reassessing levy In reassessing a building permit levy under section 205L, the Authority must take into account the following— (a) the information included in the application for the building permit under section 205H; (b) any other information given to the Authority by the applicant for the building permit or the relevant building surveyor relating to the cost of the building work; (c) any other information relating to the cost of the building work that the Authority considers relevant. 205LB Authority to give notice of additional levy to be paid (1) If a reassessment of the building permit levy under section 205L exceeds the amount of levy calculated under section 205I by at least the prescribed amount, the Authority must— (a) give to the person liable to pay the additional amount of levy a notice of— (i) the reassessment of the levy; and (ii) the additional levy to be paid by the person, being the difference between the levy paid in -- 155 of 197 -- Part 4—Building permit numbers and levies Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 152 Authorised by the Chief Parliamentary Counsel accordance with section 205GA and the reassessed levy amount; and (iii) any penalty levy imposed under section 205LC; and (b) give a notice to the relevant building surveyor of the revised cost of the building work on which the reassessment of the levy is based. (2) A notice under subsection (1)(a) must state that the person given the notice has the right to apply to VCAT for review of the reassessment of building permit levy and any penalty levy imposed. (3) In this section— person liable to pay the additional amount of levy means— (a) if the reassessment of the building levy was based on the ground under section 205L(1)(a) and the variation to the building work is not related to an amendment of the building permit, the owner of the building or land at the time at which the work that caused the increase in the cost of the building work was carried out; or (b) if the reassessment of the building levy was based on the ground under section 205L(1)(a) and the variation to the building work is related to an amendment of the building permit, the applicant for the amendment of the permit; or -- 156 of 197 -- Part 4—Building permit numbers and levies Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 153 Authorised by the Chief Parliamentary Counsel (c) if the reassessment of the building levy was based on a ground under section 205L(1)(b) or (c), the applicant for the building permit; prescribed amount means— (a) the amount prescribed by the regulations (if any); or (b) if an amount is not prescribed, $20. 205LC Authority may impose amount of penalty levy (1) If the Authority has reassessed a building levy under section 205L and the reassessment is based on a ground under section 205L(1)(a) or (c), the Authority may impose an amount of penalty levy of up to twice the difference between the reassessed amount of levy and the amount of levy determined under section 205I if— (a) in the case of the ground under section 205L(1)(a), the person liable to pay the additional amount of levy under section 205LB failed to notify the Authority within the specified period under section 205KA about a variation to the building work that resulted in an increase in the cost of the building work by at least the prescribed amount; or (b) in the case of the ground under section 205L(1)(c), the Authority considers that the applicant for the building permit gave false or misleading information to the relevant building surveyor or the Authority about the cost of the building work. -- 157 of 197 -- Part 4—Building permit numbers and levies Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 154 Authorised by the Chief Parliamentary Counsel (2) Despite subsection (1), the Authority may decide not to impose a penalty levy based on the ground under section 205L(1)(a) if the Authority is satisfied that the person liable to pay the additional amount of levy under section 205LB held an honest and reasonable belief that a variation to the building work did not increase the cost of the building work by at least the prescribed amount. (3) In this section— prescribed amount has the same meaning as in section 205KA. 205LD Person given notice must pay any additional levy and penalty levy A person who is given a notice under section 205LB(1)(a) must pay the additional amount of building permit levy and any penalty levy to the Authority within 14 days after the notice is given to the person. 205LE Authority may recover additional levy assessed by Authority and penalty levy The Authority may recover an amount of building permit levy and penalty levy from the person required to pay the levy and penalty levy under section 205LD in a court of competent jurisdiction as a debt due to the Authority. 205LF Review by VCAT A person who is given a notice under section 205LB(1)(a) may apply to VCAT for review of the following decisions of the Authority— (a) the decision by the Authority to reassess an amount of building permit levy under section 205L; -- 158 of 197 -- Part 4—Building permit numbers and levies Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 155 Authorised by the Chief Parliamentary Counsel (b) the reassessment of the amount of building permit levy by the Authority under section 205L; (c) the decision by the Authority to impose penalty levy under section 205LC; (d) the amount of penalty levy imposed by the Authority under section 205LC, payable by the person. Subdivision 4B—Assessments of levy by the Authority for unauthorised building work 205LG Levy may be payable for work carried out without a permit (1) If a person is found guilty of an offence against section 16(1) or 16B(1), the Authority must assess an amount of building permit levy required to be paid in relation to the building work that was carried out in contravention of section 16(1) or 16B(1). (2) If the Authority believes on reasonable grounds that a person has carried out building work in contravention of section 16(1) or 16B(1), the Authority may decide to assess an amount of building permit levy required to be paid in relation to that building work. (3) The Authority must assess an amount of building permit levy under subsection (1) no later than 5 years after the finding of guilt for the offence against section 16(1) or 16B(1). (4) The Authority may assess an amount of building permit levy under subsection (2) no later than 5 years after the alleged contravention of section 16(1) or 16B(1). -- 159 of 197 -- Part 4—Building permit numbers and levies Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 156 Authorised by the Chief Parliamentary Counsel (5) An assessment of levy under this section must be in accordance with section 205LH. 205LH Assessment of levy (1) An amount of building permit levy assessed under section 205LG is to be calculated on the cost of the building work in accordance with section 205G. (2) In determining the cost of the building work the Authority— (a) may appoint an appropriately qualified registered building practitioner to investigate the building work and make a report to the Authority that includes an assessment of the cost of the building work; and (b) must take into account any report under paragraph (a) and any representations and information provided by the person that owned the building or land at the time at which the building work was carried out in or on that building or land; and (c) may otherwise inform itself as it considers appropriate. 205LI Authority may impose amount of penalty levy If the Authority has made an assessment of building permit levy under section 205LG, the Authority may impose an amount of penalty levy of up to twice the amount of levy assessed. -- 160 of 197 -- Part 4—Building permit numbers and levies Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 157 Authorised by the Chief Parliamentary Counsel 205LJ Authority may charge costs of assessing levy (1) If the Authority has assessed a building permit levy under section 205LG, the Authority may charge the person that owned the building or land at the time at which the building work was carried out in or on that building or land the reasonable costs incurred by the Authority in determining the cost of the building work under section 205LH. (2) Costs charged under this section are not to be treated as a penalty under this Division and are not to be taken into account to reduce or offset any penalty levy imposed under section 205LI. 205LK Authority to give notice of assessment (1) After making an assessment of the amount of building permit levy under section 205LG, the Authority must give a notice of the levy, any penalty levy imposed and any costs charged by the Authority to the person that owned the building or land at the time at which the building work was carried out in or on that building or land. (2) A notice under subsection (1) must state that the person given the notice has the right to apply to VCAT for review of the decision by the Authority to assess the building permit levy, the amount of levy assessed by the Authority, any penalty levy imposed by the Authority or any costs charged by the Authority. -- 161 of 197 -- Part 4—Building permit numbers and levies Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 158 Authorised by the Chief Parliamentary Counsel 205LL Person given notice must pay levy, penalty levy and costs of Authority A person who is given a notice under section 205LK must pay to the Authority, within 28 days after the notice is given, the amount of building permit levy assessed by the Authority, any penalty levy imposed by the Authority and any costs charged by the Authority. 205LM Authority may recover levy assessed by Authority, penalty levy and costs The Authority may recover the amount of building permit levy, penalty levy or costs required to be paid under section 205LL in a court of competent jurisdiction as a debt due to the Authority. 205LN Review by VCAT A person may apply to VCAT for review of the following decisions of the Authority— (a) the decision by the Authority to assess a building permit levy under section 205LG(2) for building work carried out in relation to a building or land owned by the person at the time at which the building work was carried out; (b) an assessment of building permit levy by the Authority under section 205LH, payable by the person; (c) the decision by the Authority to impose an amount of penalty levy under section 205LI; (d) an amount of penalty levy imposed by the Authority under section 205LI, payable by the person; -- 162 of 197 -- Part 4—Building permit numbers and levies Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 159 Authorised by the Chief Parliamentary Counsel (e) an amount of costs charged by the Authority under section 205LJ, payable by the person.". 71 Application of Act to the Crown and public authorities In section 217(1) of the Building Act 1993, for "Subdivision 4" substitute "Subdivisions 4, 4A and 4B". -- 163 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 160 Authorised by the Chief Parliamentary Counsel Part 5—Miscellaneous amendments to Building Act 1993 72 Definitions (1) In section 3(1) of the Building Act 1993— (a) insert the following definition— "Victorian Managed Insurance Authority has the same meaning as it has in the Victorian Managed Insurance Authority Act 1996."; (b) in the definition of insurer omit "established by the Victorian Managed Insurance Authority Act 1996"; (c) in the definition of VBA Board, for "200." substitute "200;". (2) In section 3(1) of the Building Act 1993, the definition of appointed day is repealed. 73 Section 6 repealed Section 6 of the Building Act 1993 is repealed. 74 Decision on application for certificate of consent For section 25E(1)(h) of the Building Act 1993 substitute— "(h) the applicant— (i) is not in the business of building; or (ii) has been exempted from the requirement to be registered under Part 11; or (iii) is a registered building practitioner whose registration does not authorise the carrying out of the work to which the application relates.". -- 164 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 161 Authorised by the Chief Parliamentary Counsel 75 Work not to be carried out until protection requirements met At the foot of section 88(1) of the Building Act 1993 insert— "Note There is a right of appeal to the Building Appeals Board under section 141 against a decision relating to a request to carry out protection work. Under section 146, this decision does not take effect until the end of the appeal period, or the decision is affirmed on appeal.". 76 Section 127 substituted and new section 127A inserted For section 127 of the Building Act 1993 substitute— "127 Immunity for Commissioners and staff (1) A Commissioner or any person appointed or engaged by the Authority is not liable for anything done or omitted to be done in good faith— (a) in carrying out a function under this Act or the regulations; or (b) in the reasonable belief that the act or omission was in the carrying out of a function under this Act or the regulations. (2) Any liability resulting from an act or omission that would, but for subsection (1), attach to a Commissioner or a person appointed or engaged by the Authority attaches instead to the Authority. -- 165 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 162 Authorised by the Chief Parliamentary Counsel 127A Immunity for members of public authorities and staff (1) A member of a public authority or any person appointed or engaged by a public authority is not liable for anything done or omitted to be done in good faith— (a) in carrying out a function under this Act or the regulations; or (b) in the reasonable belief that the act or omission was in the carrying out of a function under this Act or the regulations. (2) Any liability resulting from an act or omission that would, but for subsection (1), attach to a member of a public authority or a person appointed or engaged by a public authority attaches instead to the public authority. (3) In this section public authority does not include a council.". 77 Section 189 substituted For section 189 of the Building Act 1993 substitute— "189 Delegation of Minister's functions (1) The Minister may by instrument delegate to the Authority any of the Minister's functions under this Act, other than the Minister's power under section 192A(1). (2) The Minister may by instrument delegate to any person employed as an executive (within the meaning of the Public Administration Act 2004) of the Department of Environment, Land, Water and Planning, the Minister's power under section 192A(1).". -- 166 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 163 Authorised by the Chief Parliamentary Counsel 78 New section 192A inserted In Division 1 of Part 12 of the Building Act 1993, after section 192 insert— "192A Designated bushfire prone areas (1) The Minister may determine that an area which is subject, or which is likely to be subject, to bushfires is a designated bushfire prone area. (2) A determination under subsection (1) must be published in the Government Gazette, and takes effect on the later of— (a) the day of publication; or (b) any later day specified in the determination. (3) The Minister must prepare a map that describes all areas that are designated from time to time as bushfire prone areas by any determination under subsection (1). Note The map prepared for the purpose of this subsection, including the map as amended from time to time, will be published on the Land Channel website www.land.vic.gov.au. (4) If the Minister alters a designated bushfire prone area or creates a new designated bushfire prone area in a determination under subsection (1), the Minister must, as soon as practicable after making the determination, amend the map prepared under subsection (3) to describe the altered designated bushfire prone area or the new designated bushfire prone area (as the case requires). (5) The Minister must give a copy of any map prepared under this section to the Authority. -- 167 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 164 Authorised by the Chief Parliamentary Counsel (6) The Authority must make a copy of any map given to the Authority under subsection (5) available without charge for inspection by members of the public during business hours at the Authority. (7) The Minister must, as soon as practicable after preparing any map under this section, give a copy of the map to each council in respect of which a designated bushfire prone area described by the map is wholly or partially within the council's municipal district. (8) A council must make a copy of the most recent map given to it under subsection (7) available for inspection by members of the public without charge during business hours at the office of that council.". 79 Insurance for domestic building work to be provided by designated insurers In section 137AA(2)(ba) of the Building Act 1993 omit "within the meaning of the Victorian Managed Insurance Authority Act 1996". 80 Effect of decisions under appeal In section 146(2) of the Building Act 1993, for "section 138 or 139" substitute "section 138, 138A or 139". 81 Sections 174 and 174A repealed Sections 174 and 174A of the Building Act 1993 are repealed. -- 168 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 165 Authorised by the Chief Parliamentary Counsel 82 Payments out of the Building account (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)". 83 Council 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.". 84 Appointment 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.". -- 169 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 166 Authorised by the Chief Parliamentary Counsel 85 Section 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.". 86 Role 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),". 87 People 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.". 88 Regulations Section 221ZZZV(3) of the Building Act 1993 is repealed. -- 170 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 167 Authorised by the Chief Parliamentary Counsel 89 Undertakings (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". 90 New 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.". -- 171 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 168 Authorised by the Chief Parliamentary Counsel 91 New 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.". 92 New 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; -- 172 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 169 Authorised by the Chief Parliamentary Counsel (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.". 93 New 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.". -- 173 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 170 Authorised by the Chief Parliamentary Counsel 94 New 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 1 Definitions 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; -- 174 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 171 Authorised by the Chief Parliamentary Counsel 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. 2 General 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 3 Registration 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 -- 175 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 172 Authorised by the Chief Parliamentary Counsel (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). -- 176 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 173 Authorised by the Chief Parliamentary Counsel (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. 4 Authority 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. -- 177 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 174 Authorised by the Chief Parliamentary Counsel 5 Body 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. 6 Registration 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. -- 178 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 175 Authorised by the Chief Parliamentary Counsel (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. -- 179 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 176 Authorised by the Chief Parliamentary Counsel (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 7 Further 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. 8 Notice 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. -- 180 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 177 Authorised by the Chief Parliamentary Counsel (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. 9 Notice 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. 10 Relevant 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. 10A Suspension 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. 11 Building 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. -- 181 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 178 Authorised by the Chief Parliamentary Counsel 12 Relevant 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. 13 Authority 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. 14 Authority 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. 15 Assessments 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. -- 182 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 179 Authorised by the Chief Parliamentary Counsel Part 4—General 16 Regulations 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.". 95 Miscellaneous 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". -- 183 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 180 Authorised by the Chief Parliamentary Counsel (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.". -- 184 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 181 Authorised by the Chief Parliamentary Counsel (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". 96 References to Tribunal (1) In sections 25J and 137B(1)(c) of the Building Act 1993, for "the Victorian Civil and Administrative Tribunal" substitute "VCAT". -- 185 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 182 Authorised by the Chief Parliamentary Counsel (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". 97 References to the Victorian Building Authority In sections 221E(3) and 221F(2) of the Building Act 1993, for "Board" substitute "Authority". 98 Suspension 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". 99 Updating 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". -- 186 of 197 -- Part 5—Miscellaneous amendments to Building Act 1993 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 183 Authorised by the Chief Parliamentary Counsel 100 Repeal 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. -- 187 of 197 -- Part 6—Amendments to Domestic Building Contracts Act 1995 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 184 Authorised by the Chief Parliamentary Counsel Part 6—Amendments to Domestic Building Contracts Act 1995 101 New 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 -- 188 of 197 -- Part 6—Amendments to Domestic Building Contracts Act 1995 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 185 Authorised by the Chief Parliamentary Counsel (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). -- 189 of 197 -- Part 6—Amendments to Domestic Building Contracts Act 1995 Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 186 Authorised by the Chief Parliamentary Counsel (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.". 102 General 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". 103 Breach of dispute resolution order notice In section 49U(5) of the Domestic Building Contracts Act 1995, for "given" substitute "give". -- 190 of 197 -- Part 7—Amendments to other Acts Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 187 Authorised by the Chief Parliamentary Counsel Part 7—Amendments to other Acts Division 1—Amendments to Building Legislation Amendment (Consumer Protection) Act 2016 104 New 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)".'. 105 New 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 -- 191 of 197 -- Part 7—Amendments to other Acts Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 188 Authorised by the Chief Parliamentary Counsel 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 proposed new 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.".'. -- 192 of 197 -- Part 7—Amendments to other Acts Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 189 Authorised by the Chief Parliamentary Counsel 106 Further limitations on issue of building permit Section 46(1) and (3) of the Building Legislation Amendment (Consumer Protection) Act 2016 are repealed. 107 Offence 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). 108 Section 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 109 New 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 -- 193 of 197 -- Part 7—Amendments to other Acts Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 190 Authorised by the Chief Parliamentary Counsel 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 110 Administration of Building Act Section 128E(3) of the Casino Control Act 1991 is repealed. Division 4—Amendment to Architects Act 1991 111 Grounds 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". -- 194 of 197 -- Part 7—Amendments to other Acts Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 191 Authorised by the Chief Parliamentary Counsel Division 5—Amendment to Criminal Procedure Act 2009 112 New 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.1 Indictable offences under the Building Act 1993.". -- 195 of 197 -- Part 8—Repeal of amending Act Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 192 Authorised by the Chief Parliamentary Counsel Part 8—Repeal of amending Act 113 Repeal 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). ═══════════════ -- 196 of 197 -- Endnotes Building Amendment (Enforcement and Other Measures) Act 2017 No. 21 of 2017 193 Authorised by the Chief Parliamentary Counsel Endnotes 1 General information See www.legislation.vic.gov.au 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." -- 197 of 197 --