Building Legislation Amendment (Consumer Protection) Act 2016

Authorised by the Chief Parliamentary Counsel Authorised Version i Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 TABLE OF PROVISIONS Section Page Part 1—Preliminary 1 1 Purposes 1 2 Commencement 2 Part 2—Resolution of domestic building work disputes 3 Division 1—Amendments to Domestic Building Contracts Act 1995 3 3 Definitions 3 4 Building work to which Act does not apply 4 5 New section 29A inserted 4 6 Part 3A repealed and Part 4 substituted 5 7 New section 56 inserted 59 8 New section 57A inserted 60 9 New Subdivision 3 inserted in Division 2 of Part 5 61 10 References to Tribunal 66 11 New section 136 inserted 68 12 New Schedule 1 inserted 68 Division 2—Amendments to Victorian Civil and Administrative Tribunal Act 1998 70 13 Definitions 70 14 Tribunal may request information about domestic building dispute 70 15 New clauses 12B to 12D inserted 71 Part 3—Regulation of building work and building practitioners 75 Division 1—Interpretation 75 16 Definitions 75 Division 2—Abolition of Building Practitioners Board 76 17 Repeal of Division 3 of Part 11 76 18 Transfer of Building Practitioners Board functions to Victorian Building Authority 76 -- 1 of 163 -- Section Page ii Authorised by the Chief Parliamentary Counsel Division 3—Registration of building practitioners 79 19 Application for registration 79 20 Registration 79 21 New section 170A inserted 79 22 New section 171 substituted 79 23 New sections 172AA, 172AAB and 172AAC inserted 80 24 Offences 81 25 New Divisions 2, 3 and 4 of Part 11 substituted for Divisions 2 and 2A 83 26 Regulation-making powers 105 Division 4—Regulation of owner-builders 105 27 Restrictions on owner-builder 105 28 Further restrictions on owner-builders 106 29 Application for owner-builder certificate of consent 106 30 Decision on application for certificate of consent 107 31 Certificate of consent 108 32 Register of certificates 109 33 Repeal of section 25I 109 34 New section 227AA inserted 109 35 Functions of performance auditors 110 36 Powers of performance auditors 110 Division 5—Regulation of building surveyors 110 37 New Division 1 heading inserted in Part 6 110 38 When may a private building surveyor be appointed? 110 39 Circumstances in which private building surveyor may not act 111 40 New Division 2 inserted in Part 6 112 41 New Division 3 inserted in Part 6 113 42 Directions and recommendations in relation to building surveyors 128 43 Role of municipal building surveyor outside municipal district 129 Division 6—Regulation of building work 129 44 Section 16 substituted 129 45 Costs of building work 130 46 Further limitations on issue of building permit 131 47 New sections 30A and 30B inserted 133 48 New Division 1 heading inserted in Part 4 134 49 New Division 2 of Part 4 substituted for section 37 134 50 New Division 3 heading inserted in Part 4 140 51 New section 118A inserted 140 52 Offence to work as building practitioner without required insurance 141 53 New section 138A inserted 141 -- 2 of 163 -- Section Page iii Authorised by the Chief Parliamentary Counsel Division 7—Enforcement 142 54 New Division 2A inserted in Part 13 142 Division 8—General 144 55 Section 199 substituted 144 56 Statute law revision 144 Division 9—Transitional provisions 144 57 New section 273 inserted 144 58 New Schedule 8 inserted 145 Division 10—Amendments relating to dispute resolution 153 59 Definitions of dispute resolution order and domestic building work dispute 153 60 New section 37HA inserted 153 61 Directions may be revoked 153 62 Requirement to give copies of directions 154 63 Grounds for disciplinary action 154 64 Applying for internal review 155 65 Internal review 155 66 Application for review by VCAT of reviewable decision 156 67 Proceedings and decision 156 68 Repeal of section 241B 156 Division 11—Amendments to Victorian Civil and Administrative Tribunal Act 1998 157 69 New Part 2B inserted in Schedule 1 157 70 Amendments to Part 6 of Schedule 1 157 Division 12—Amendments to Domestic Building Contracts Act 1995 158 71 General contents etc. of a contract 158 72 Domestic Builders Fund 158 Part 4—Repeal of amending Act 159 73 Repeal of amending Act 159 ═══════════════ Endnotes 160 1 General information 160 -- 3 of 163 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Building Legislation Amendment (Consumer Protection) Act 2016† No. 15 of 2016 [Assented to 19 April 2016] The Parliament of Victoria enacts: Part 1—Preliminary 1 Purposes The main purposes of this Act are— (a) to amend the Domestic Building Contracts Act 1995— (i) to enhance consumer protection in relation to domestic building work by providing for new processes for the Victoria -- 4 of 163 -- Part 1—Preliminary Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 2 Authorised by the Chief Parliamentary Counsel resolution of domestic building disputes; and (ii) to improve generally the operation of that Act; and (b) to amend the Building Act 1993— (i) to enhance consumer protection in relation to domestic building work by improving the regulation of building practitioners, particularly builders carrying out domestic building work and building surveyors; and (ii) to provide for further regulation of owner-builders; and (iii) to abolish the Building Practitioners Board and provide for its functions to be carried out by the Victorian Building Authority; and (iv) to improve generally the operation and enforcement of that Act; and (c) to make consequential amendments to the Victorian Civil and Administrative Tribunal Act 1998. 2 Commencement (1) This Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 July 2017, it comes into operation on that day. -- 5 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 3 Authorised by the Chief Parliamentary Counsel Part 2—Resolution of domestic building work disputes Division 1—Amendments to Domestic Building Contracts Act 1995 3 Definitions (1) In section 3(1) of the Domestic Building Contracts Act 1995 insert the following definitions— "assessor means an assessor appointed under section 48; breach of dispute resolution order notice means a notice issued under section 49U; certificate of conciliation means a certificate of conciliation issued by the chief dispute resolution officer under section 45F or 46E; chief dispute resolution officer means the chief dispute resolution officer appointed under Division 9 of Part 4; conciliation includes a conciliation conference; conciliation officer means— (a) the chief dispute resolution officer; or (b) a person appointed as a conciliation officer under Division 9 of Part 4; dispute resolution order means a dispute resolution order issued under Division 6 of Part 4, or that order as amended under this Act; Domestic Builders Fund means the Domestic Builders Fund established under section 124; -- 6 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 4 Authorised by the Chief Parliamentary Counsel domestic building dispute account means the domestic building dispute account in the Building account within the meaning of the Building Act 1993; Domestic Building Dispute Resolution Victoria Trust Fund means the trust fund established under section 51; domestic building work dispute has the meaning set out in section 44; Victorian Managed Insurance Authority means the Victorian Managed Insurance Authority established under the Victorian Managed Insurance Authority Act 1996.". (2) In section 3(1) of the Domestic Building Contracts Act 1995, the definitions of determination and Tribunal are repealed. 4 Building work to which Act does not apply (1) Section 6(a) of the Domestic Building Contracts Act 1995 is repealed. (2) At the end of section 6 of the Domestic Building Contracts Act 1995 insert— "(2) This Act or a provision of this Act does not apply to any work that the regulations state is not building work to which this Act or that provision (as the case requires) applies.". 5 New section 29A inserted After section 29 of the Domestic Building Contracts Act 1995 insert— "29A Contract information statement (1) A builder must not enter into a major domestic building contract unless the builder has first given the building owner a contract -- 7 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 5 Authorised by the Chief Parliamentary Counsel information statement in a form approved by the Director under this section. Penalty: 60 penalty units. (2) The Director, after consulting with the Authority, must approve the form of a contract information statement for the purposes of this section.". 6 Part 3A repealed and Part 4 substituted For Parts 3A and 4 of the Domestic Building Contracts Act 1995 substitute— "Part 4—Domestic building work disputes Division 1—Preliminary 44 What is a domestic building work dispute? (1) In this Part, a domestic building work dispute is a domestic building dispute arising between a building owner and— (a) a builder; or (b) a building practitioner (as defined in the Building Act 1993); or (c) a sub-contractor; or (d) an architect— in relation to a domestic building work matter. (2) In this Part, domestic building work matter means any matter relating to a domestic building contract or the carrying out of domestic building work, including any of the following— -- 8 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 6 Authorised by the Chief Parliamentary Counsel (a) an alleged breach of a warranty set out in section 8; (b) an alleged failure to maintain the standard or quality of building work specified in a domestic building contract; (c) an alleged failure to complete the domestic building work required by a domestic building contract; (d) an alleged failure to complete the domestic building work required by a domestic building contract within the times specified in the contract; (e) an alleged failure to pay money for domestic building work performed under the contract. (3) A reference to a building owner in this section includes a reference to any person who is the owner for the time being of the building or land in respect of which a domestic building contract was made or domestic building work was carried out. Division 2—Referral of domestic building work disputes 45 Referral of domestic building work dispute to chief dispute resolution officer (1) A party to a domestic building work dispute (the referring party) may refer the dispute to the chief dispute resolution officer. (2) A referral of a domestic building work dispute must— (a) be in writing in a form (if any) approved by the Director; and -- 9 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 7 Authorised by the Chief Parliamentary Counsel (b) be signed by the referring party or the referring party's representative; and (c) identify any other party to the dispute and that party's contact details (if known); and (d) identify the relevant domestic building contract; and (e) specify the particulars of the dispute. (3) A domestic building work dispute must be referred to the chief dispute resolution officer within— (a) 10 years after the date of issue under the Building Act 1993 of the occupancy permit in relation to the domestic building work (whether or not the occupancy permit is subsequently cancelled or varied); or (b) if an occupancy permit is not issued, 10 years after the date of issue under Part 4 of the Building Act 1993 of the certificate of final inspection for the domestic building work; or (c) if neither an occupancy permit nor a certificate of final inspection is issued or required in relation to the domestic building work, 10 years after the date of practical completion of the domestic building work; or (d) if neither an occupancy permit nor a certificate of final inspection is issued or required in relation to the domestic building work and a date of practical completion cannot be ascertained, 10 years after the domestic building contract was entered into. -- 10 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 8 Authorised by the Chief Parliamentary Counsel (4) It is to be presumed (unless an earlier date of practical completion can be ascertained) that the date of practical completion of domestic building work was the earlier of the following dates that can be ascertained for the work— (a) the date on which the builder handed over possession of the work to the building owner; (b) the date on which the builder last attended the building site to carry out work (other than work to remedy any defect that does not affect practical completion). (5) A party may not refer a domestic building work dispute under this section if proceedings in relation to the matter in dispute have commenced in VCAT or in a court. (6) In this section— date of practical completion, in relation to domestic building work, means the date when the domestic building work is completed except for any omissions or defects that do not prevent the domestic building work from being reasonably capable of being used for its intended purpose. 45A Initial assessment of referral On a referral being made under section 45, a conciliation officer nominated by the chief dispute resolution officer must make an initial assessment to determine whether— (a) the dispute referred is a domestic building work dispute; and -- 11 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 9 Authorised by the Chief Parliamentary Counsel (b) the referral was made within the required time; and (c) at least one of the parties to the dispute appears willing to participate in conciliation in good faith; and (d) proceedings in relation to the matter in dispute have commenced in VCAT or in a court. 45B Powers of conciliation officer in making assessment (1) For the purpose of making an initial assessment of a referral, a conciliation officer may— (a) make any inquiries or obtain any information the conciliation officer considers necessary; and (b) ask the referring party to provide further information or documents relating to the dispute; and (c) require the referring party to provide evidence that the referring party has taken reasonable steps to resolve the dispute with the other parties to the dispute. (2) A conciliation officer may fix a time for compliance with a request or requirement under subsection (1) and may extend that time at the request of the referring party. (3) A conciliation officer may ask any other party to the domestic building work dispute to participate in a conciliation of the dispute if the conciliation officer considers it appropriate to do so. -- 12 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 10 Authorised by the Chief Parliamentary Counsel 45C Acceptance or rejection of referral (1) After making an initial assessment of a referral under section 45A, the conciliation officer must recommend to the chief dispute resolution officer to accept or reject the referral. (2) After considering the recommendation made by the conciliation officer, the chief dispute resolution officer may— (a) accept the referral; or (b) reject the referral if the chief dispute resolution officer assesses that the dispute is not suitable for conciliation. (3) The chief dispute resolution officer may assess a referred dispute as not suitable for conciliation if— (a) the referral does not comply with section 45(2); or (b) the referral was not made within the required time; or (c) the referring party has not provided any information, documents or evidence requested or required under section 45B or has not provided them within the time required by the conciliation officer; or (d) the referring party has failed without reasonable excuse to take reasonable steps to resolve the dispute before the referral; or (e) all issues arising out of the dispute have been or are the subject of proceedings before VCAT or a court; or -- 13 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 11 Authorised by the Chief Parliamentary Counsel (f) there is no reasonable likelihood of the dispute being settled by conciliation for any reason other than because no other party is willing to engage in the conciliation; or (g) the referral— (i) is frivolous or otherwise lacking in substance; or (ii) is vexatious; or (iii) was not made in good faith; or (h) the dispute has been resolved. 45D Where more than one matter referred (1) If more than one matter in dispute is referred, the chief dispute resolution officer may sever from the referral any matter that the chief dispute resolution officer would reject under section 45C if it were the only matter referred. (2) If a referral relates to more than one matter or the matter referred relates to more than one circumstance, the chief dispute resolution officer may separate the referral into 2 or more referrals if— (a) a conciliation officer's inquiries into some of the matters have not been completed and it is convenient to separate them; or (b) it is in the public interest to do so. (3) If the chief dispute resolution officer accepts more than one referral in relation to the same or related domestic building work, the chief dispute resolution officer may decide to deal with the referrals together as if they were one referral. -- 14 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 12 Authorised by the Chief Parliamentary Counsel 45E Notice of decision (1) The chief dispute resolution officer must give written notice of a decision under section 45C or 45D to each party to a referred dispute within 10 business days after making the decision. (2) If the chief dispute resolution officer decides to accept a referral, the notice must— (a) include an outline of the referring party's stated reasons for the dispute; and (b) state that the dispute has been referred to a conciliation officer. (3) If the chief dispute resolution officer decides to reject the referral or any matter referred, the notice must include the reasons for the decision. (4) If the chief dispute resolution officer decides to sever any matter from a referral or to separate or combine referrals, the notice must include the reasons for the decision. 45F Certificate of conciliation—dispute not suitable for conciliation (1) If the chief dispute resolution officer assesses a domestic building work dispute or a matter as not suitable for conciliation, the officer must issue a certificate of conciliation certifying that— (a) the dispute or matter was referred under section 45; and (b) the chief dispute resolution officer has assessed the dispute or matter as not suitable for conciliation. -- 15 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 13 Authorised by the Chief Parliamentary Counsel (2) The certificate of conciliation must be issued within 10 business days after written notice of the decision to reject the referral is given to each party under section 45E. (3) The certificate of conciliation must specify the chief dispute resolution officer's reasons for assessing the domestic building work dispute or matter as not suitable for conciliation. (4) The chief dispute resolution officer must give a copy of the certificate of conciliation as soon as practicable to each party to the dispute. (5) A party to a domestic building work dispute may apply to VCAT for review of a failure by the chief dispute resolution officer to issue a certificate of conciliation under this section. 45G Withdrawal of referral or matter referred (1) A party who referred a domestic building work dispute to the chief dispute resolution officer may seek to withdraw the referral or any matter referred by giving notice to the chief dispute resolution officer before the dispute is finally dealt with under this Part. (2) The chief dispute resolution officer may— (a) accept the withdrawal; or (b) refuse to accept the withdrawal. (3) Without limiting subsection (2), the chief dispute resolution officer may refuse to accept a withdrawal if the chief dispute resolution officer considers that the dispute has disclosed evidence of a contravention of— (a) this Act or the regulations; or -- 16 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 14 Authorised by the Chief Parliamentary Counsel (b) the Building Act 1993 or the regulations under that Act. (4) The chief dispute resolution officer must give written notice to each party to a referred dispute of a decision accepting or refusing a withdrawal under this section within 10 business days after receiving the notice under subsection (1). (5) A certificate of conciliation cannot be issued in respect of a dispute or matter if the chief dispute resolution officer has accepted the withdrawal of the referral of that dispute or matter under this section. Division 3—Conciliation of domestic building work disputes 46 Referral of dispute to conciliation officer If the chief dispute resolution officer accepts a domestic building work dispute for conciliation, the chief dispute resolution officer must refer the dispute to a conciliation officer for conciliation under this Division. 46A How may conciliation be conducted? (1) This section applies if a conciliation officer decides to conduct a conciliation conference. (2) The conciliation conference may be conducted— (a) by attendance of the parties in person at a place that is reasonably convenient for the parties, which may be the building site at which the domestic building work that is the subject of the dispute is being or was carried out or elsewhere; or -- 17 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 15 Authorised by the Chief Parliamentary Counsel (b) by post or by teleconference or other electronic communication; or (c) by a combination of the methods in paragraphs (a) and (b). (3) The conciliation officer must give written notice of the conciliation conference to each party to the dispute. (4) The notice must specify— (a) the date and time of the conference; and (b) if the conference is to be conducted at a particular place, that place; and (c) if the conference is to be held by post, the address or addresses to which written communications are to be sent; and (d) if the conference is to be held by electronic communication, the method by which participation in the conference is to be effected. (5) The notice must also include a statement advising the parties to the dispute that the chief dispute resolution officer may take the actions set out in sections 46E, 48B and 49 (and specified in the statement) if— (a) the parties do not participate in the conciliation at the date, time and place and in the manner specified in the notice; and (b) the matter in dispute concerns defective building work or an alleged failure to complete domestic building work. -- 18 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 16 Authorised by the Chief Parliamentary Counsel 46B Conciliation rules (1) A conciliation officer must conduct a conciliation in accordance with the conciliation rules. (2) A conciliation officer may issue directions to the parties to a dispute in accordance with the conciliation rules. (3) The Director may approve conciliation rules for the conduct of conciliations under this Part. (4) The Director must publish approved conciliation rules on the Consumer Affairs Victoria website. 46C Statements made during conciliation (1) Evidence of anything said or done by the parties or the conciliation officer during conciliation under this Division is not admissible in any proceeding before VCAT under Part 5 or in any other legal proceeding unless all the parties to the dispute agree in writing to the giving of the evidence. (2) Subsection (1) does not apply to— (a) any written communication from the conciliation officer to any of the parties to the dispute; or (b) anything said or done by an assessor appointed under Division 5; or (c) any report produced for the purpose of the conciliation by an assessor appointed under Division 5. -- 19 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 17 Authorised by the Chief Parliamentary Counsel (3) Nothing in this section prevents the use of any information or document disclosed in a conciliation for the purposes of— (a) determining whether to make a dispute resolution order under this Part; or (b) any disciplinary proceedings under Part 11 of the Building Act 1993 in relation to a contravention of— (i) this Act or the regulations; or (ii) the Building Act 1993 or the regulations under that Act. Note Clause 12A(3) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 places limits on the power of VCAT to request information that is inadmissible because of section 46C. 46D Notice if dispute not resolved by conciliation (1) This section applies if the chief dispute resolution officer has accepted a domestic building work dispute for conciliation and the dispute is not resolved. (2) The chief dispute resolution officer must give each party to the dispute written notice that the chief dispute resolution officer proposes to issue a certificate of conciliation in relation to the dispute. (3) The notice must include a copy of the proposed certificate of conciliation that must state— (a) that the dispute was not resolved by conciliation; and (b) the reasons why the dispute was not resolved. -- 20 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 18 Authorised by the Chief Parliamentary Counsel (4) The notice must state that each party may make submissions to the chief dispute resolution officer in relation to the contents of the proposed certificate within the period (not being less than 10 business days) specified in the notice. 46E Certificate of conciliation—dispute accepted for conciliation (1) The chief dispute resolution officer must issue a certificate of conciliation in relation to the domestic building work dispute after considering any submissions received within the time required under section 46D if the chief dispute resolution officer is satisfied that the dispute has not been resolved. (2) The certificate of conciliation must state that— (a) the chief dispute resolution officer had received a referral of a domestic building work dispute; and (b) the chief dispute resolution officer had accepted the dispute for conciliation; and (c) the dispute was not resolved by conciliation. (3) The certificate of conciliation must include a statement of the reasons why the dispute was not resolved which may include a statement by the chief dispute resolution officer that in the chief dispute resolution officer's opinion an identified party did not participate in the conciliation or did not participate in good faith. -- 21 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 19 Authorised by the Chief Parliamentary Counsel (4) The chief dispute resolution officer must give a copy of the certificate of conciliation as soon as practicable to each party to the domestic building work dispute. (5) A party to a domestic building work dispute may apply to VCAT for review of a failure by the chief dispute resolution officer to issue a certificate of conciliation under this section if a certificate of conciliation is not issued within the period of 20 business days after the end of the period specified in the notice under section 46D(4). 46F Record of agreement if dispute resolved by conciliation (1) This section applies if the domestic building work dispute is resolved by conciliation under this Division. (2) The conciliation officer must prepare a written record of agreement setting out the terms of the agreement for the resolution of the dispute, including— (a) the action, if any, to be taken by each party to the dispute, which may include the making of a payment; and (b) the time within which the action is to be taken. (3) The chief dispute resolution officer must— (a) keep the record of agreement; and (b) give a copy of the record of agreement to each party to the dispute. (4) A party to the dispute may give written notice to the chief dispute resolution officer of any error or omission at any time before the end of the time specified in the record of agreement for taking action. -- 22 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 20 Authorised by the Chief Parliamentary Counsel (5) The chief dispute resolution officer— (a) may make any corrections to the record of agreement the chief dispute resolution officer considers appropriate to rectify an error or omission; and (b) must give written notice to each party to the dispute of each correction made under paragraph (a). (6) A record of agreement is evidence of the terms of the agreement for the resolution of the domestic building work dispute to which it relates. 46G Notice of failure to comply with conciliated agreement (1) A party to a domestic building work dispute may give written notice to the chief dispute resolution officer if an action recorded in a record of agreement for the dispute has not been taken within the time specified in the record of agreement. (2) The notice must state the extent of any partial compliance with the required action. 46H Notice of non-compliance with conciliated agreement (1) If, on receiving a notice under section 46G, the chief dispute resolution officer determines that the action was not taken within the specified time— (a) the record of agreement ceases to have effect; and (b) the chief dispute resolution officer must give written notice of that non-compliance to each party to the domestic building work dispute. -- 23 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 21 Authorised by the Chief Parliamentary Counsel (2) The notice must state the extent of any partial compliance with the required action. Division 4—Requirement to stop domestic building work 47 Application of Division This Division applies if a domestic building work dispute is referred to the chief dispute resolution officer under Division 2. 47A Requirement to stop domestic building work (1) At any time after the referral, the chief dispute resolution officer may, by written notice given to the builder, require the builder to stop— (a) all domestic building work under the domestic building contract; or (b) the domestic building work under the domestic building contract that is specified in the notice. (2) The notice (a stop work notice) may be given if the chief dispute resolution officer considers that— (a) there is a reasonable possibility that evidence relevant to the matters in dispute may be lost or become impractical to obtain if the domestic building work were to continue; or (b) it is appropriate for any other reason to give the notice. (3) A stop work notice has effect for the period, not exceeding 30 days, specified in the notice. -- 24 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 22 Authorised by the Chief Parliamentary Counsel 47B Extension or cancellation of stop work notice (1) If the chief dispute resolution officer considers that it is appropriate to do so, the chief dispute resolution officer may, by written notice given to the builder, extend the period that a stop work notice has effect for a further period not exceeding 30 days. (2) A notice under subsection (1) may vary the requirements in the stop work notice. (3) The chief dispute resolution officer may cancel a stop work notice at any time by written notice given to the builder. 47C Effect of stop work notice (1) The chief dispute resolution officer must give a copy of each stop work notice to all parties to the domestic building work dispute. (2) A stop work notice takes effect on the notice being given to the builder. (3) The stop work notice ceases to have effect on the issuing of a certificate of conciliation under section 45F in relation to the domestic building work dispute. (4) If a stop work notice is given in relation to domestic building work, the period during which the notice is in effect is not to be counted in any period within which the domestic building work must be completed under the domestic building contract. -- 25 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 23 Authorised by the Chief Parliamentary Counsel 47D Builder must comply with stop work notice (1) A builder must comply with a stop work notice given to the builder under this Division. Penalty: 60 penalty units. (2) Subsection (1) does not apply if the building work carried out after the receipt of the stop work notice was reasonably necessary to protect the safety of any person or property. Division 5—Assessment of domestic building work 48 Who may be appointed as an assessor? (1) The Director, on the recommendation of the chief dispute resolution officer, may appoint as an assessor— (a) an architect registered under the Architects Act 1991; (b) a building practitioner registered under the Building Act 1993 in a prescribed category or class; (c) a person in a prescribed class of persons. (2) A person appointed under subsection (1) may be— (a) a person employed under Part 3 of the Public Administration Act 2004; or (b) a person engaged for that purpose by the Director. -- 26 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 24 Authorised by the Chief Parliamentary Counsel 48A Functions of assessor An assessor has the following functions— (a) to assess whether domestic building work is defective or incomplete where required under this Act; (b) to carry out any other function conferred on an assessor under this Act or the regulations or any other Act or the regulations under that Act. 48B Directions to assessor (1) The chief dispute resolution officer may direct an assessor to inquire into a domestic building work dispute. (2) The direction must be in writing and may require the assessor— (a) to examine the domestic building work to determine whether the domestic building work performed by the builder is defective or incomplete; and (b) if the assessor believes that the domestic building work is defective or incomplete, to estimate the number of business days required to rectify or complete the work. 48C Request to chief dispute resolution officer for assessor (1) This section applies if a dispute was referred to the chief dispute resolution officer under Division 2 and— (a) the referral was rejected by the chief dispute resolution officer; or -- 27 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 25 Authorised by the Chief Parliamentary Counsel (b) the referral was accepted for conciliation but was not resolved by conciliation and an assessor has not already been directed by the chief dispute resolution officer to inquire into the dispute. (2) A party to the domestic building contract may ask the chief dispute resolution officer to direct an assessor to inquire into whether work performed under the contract is defective or incomplete. (3) A request under subsection (2) must be accompanied by the prescribed fee (if any). (4) On receiving that request and any prescribed fee, the chief dispute resolution officer may direct an assessor to inquire into the domestic building work. 48D Assessor may enter building site (1) An assessor who is directed under section 48B to inquire into a domestic building work dispute may at any reasonable time enter and examine any relevant part of the building site at which the work that is the subject of the dispute is being, or has been, carried out. (2) However, if the relevant part of the building site where the work is being carried out is being used as a residence, an assessor may only enter and examine that part of the building site with the consent of the occupier. -- 28 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 26 Authorised by the Chief Parliamentary Counsel (3) An assessor who is seeking to enter a part of a building site that is being used as a residence must inform the occupier— (a) that the consent of the occupier is required before the assessor may enter that part of the site; and (b) that the failure of the occupier to provide the consent may be a ground for the issue of a certificate of conciliation that the dispute was not resolved by conciliation; and (c) if the occupier is the owner, that the certificate of conciliation referred to in paragraph (b) may include a statement that the owner did not participate in the conciliation in good faith. (4) A failure by the occupier of a residence on a building site to provide consent under this section is a ground for— (a) the issue of a certificate of conciliation stating that the dispute was not resolved by conciliation; and (b) if the occupier is also the owner, the inclusion in the certificate of conciliation of a statement that the owner did not participate in the conciliation in good faith. 48E Powers in relation to examination of work (1) An assessor may cause any domestic building work to be demolished, opened or cut into if this is reasonably required to facilitate an examination of the work. -- 29 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 27 Authorised by the Chief Parliamentary Counsel (2) An assessor may take photographs (including video recordings) or make sketches of the building site or the domestic building work being examined. 48F Power to require production of documents (1) An assessor who enters a building site under section 48D may, to the extent that it is reasonably necessary to determine whether domestic building work is defective or incomplete, require a person at the building site— (a) to give information to the assessor, orally or in writing; and (b) to produce documents to the assessor; and (c) to give reasonable assistance to the assessor. (2) If a person produces a document to an assessor in accordance with a requirement under this section, the assessor may make copies of, or take extracts from, the document. 48G Refusal or failure to comply with requirement A person must not, without reasonable excuse, refuse or fail to comply with a requirement of an assessor under this Division. Penalty: 60 penalty units. 48H Protection against self-incrimination (1) It is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person is required to do by or under this Division, if the giving of the -- 30 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 28 Authorised by the Chief Parliamentary Counsel 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. 48I Offence to hinder or obstruct assessor A person must not, without reasonable excuse, hinder or obstruct an assessor exercising any power conferred by this Division. Penalty: 60 penalty units. 48J Assessor may conduct tests and obtain expert advice (1) This section is subject to sections 48K and 48M. (2) In carrying out an examination of domestic building work, the assessor may— (a) conduct any test authorised by the regulations; and (b) obtain expert advice. (3) No costs are payable by a party for the conduct of a test or for obtaining expert advice. 48K Costs to be paid by non-participating party The costs of the preparation of a report (including any examination, test or advice obtained) by an assessor in relation to domestic building work are payable by a party to a domestic building work dispute that was subject to conciliation if— -- 31 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 29 Authorised by the Chief Parliamentary Counsel (a) written notice of a conciliation conference was given to the party; and (b) the party, without reasonable excuse, failed to participate in the conciliation conference; and (c) a dispute resolution order is issued against the party because the building work was defective or incomplete. 48L Agreement of requesting party required for test or expert advice (1) This section applies if an assessor is directed to inquire into domestic building work at the request of a party to a domestic building contract under section 48C. (2) The assessor must give written notice to the party if the assessor considers a test or expert advice is needed for the purpose of an examination of domestic building work, and ask the party to agree to the conduct of the test or the obtaining of the expert advice. (3) The assessor may discontinue the examination if the party does not agree to the conduct of the test or the obtaining of the expert advice. 48M Requesting party liable for costs The requesting party referred to in section 48L is liable for the costs of— (a) any tests conducted, or the obtaining of any expert advice, under section 48J that are agreed to by the party; and (b) making good any damage caused by any tests conducted under section 48J that are agreed to by the party. -- 32 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 30 Authorised by the Chief Parliamentary Counsel 48N Recovery of costs (1) The Director may recover any costs payable by a party under this Division in any court of competent jurisdiction as a debt due to the State. (2) The Director must pay any costs recovered under this section into the Domestic Builders Fund. 48O Reporting the results of an examination (1) After conducting an examination of domestic building work, the assessor must give a report of the results of the examination to— (a) each party to the dispute; and (b) the chief dispute resolution officer. (2) The report must be in writing in a form approved by the Director. (3) Subject to subsection (4), the assessor is not required to give a report under this section if— (a) the examination was for the purposes of a conciliation conference; and (b) a record of agreement was made as a result of the conciliation conference. (4) The chief dispute resolution officer may direct an assessor to prepare a report under this section if the chief dispute resolution officer has been given notice under section 46G of non-compliance with an action required in a record of agreement. (5) On being given a direction under subsection (4), the assessor must— (a) prepare the report within the time required in the direction; and -- 33 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 31 Authorised by the Chief Parliamentary Counsel (b) give a copy of the report, without delay, to— (i) each party to the dispute; and (ii) the chief dispute resolution officer. (6) A party to a dispute may make a written submission to the chief dispute resolution officer in relation to a report within the prescribed period after the report is given to the party under this section. (7) In this section— prescribed period means the longer of— (a) the period prescribed by the regulations (if any); or (b) 5 business days. 48P Report if building work not defective or incomplete If, as a result of an examination, the assessor considers that the domestic building work examined is not defective or incomplete, the report under section 48O must include a statement to that effect. 48Q Report if building work defective or incomplete (1) This section applies if, as a result of an examination, the assessor considers that the domestic building work examined is defective or incomplete. (2) The report under section 48O must— (a) specify the building work that is defective or incomplete, including— -- 34 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 32 Authorised by the Chief Parliamentary Counsel (i) any defects that may adversely affect— (A) the health or safety of people who may use the building to which the work relates; or (B) the amenity of the building; and (ii) any other defects in the building work that are incidental to, but not the subject of, the dispute; and (b) if required by the chief dispute resolution officer under section 48B, include an estimate of the number of business days required to rectify or complete the building work. (3) In the report the assessor may— (a) specify the cause of the defective or incomplete building work; and (b) recommend a preferred method by which the defective or incomplete work may be rectified or completed. (4) In making a recommendation under subsection (3), the assessor must have regard to— (a) the relevant domestic building contract, including the plans and specifications set out in that contract; and (b) any other matters the assessor considers relevant. (5) If the assessor is of the opinion that the building work is so defective that it would not be appropriate to allow the builder to rectify or complete the work, the report may include a statement to that effect. -- 35 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 33 Authorised by the Chief Parliamentary Counsel 48R Report of non-compliance with building legislation (1) If, as a result of an examination, the assessor is of the opinion that there has been a contravention of the Building Act 1993 or any regulations made under that Act in relation to any domestic building work, the assessor must— (a) state that opinion in a written report; and (b) provide a copy of the report to the Authority within 5 business days after preparing that report. (2) The Authority may refer details of the alleged contravention to— (a) the relevant council; and (b) the relevant building surveyor in relation to the building work. 48S Effect of complying with assessor's recommendations The carrying out by a builder of the recommendations contained in a report pursuant to section 48Q(3) does not absolve the builder from completing the domestic building contract in accordance with the plans and specifications set out in the contract. 48T Assessor's report admissible in evidence A report of an assessor under section 48O is admissible in evidence in proceedings before VCAT or any other legal proceedings. -- 36 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 34 Authorised by the Chief Parliamentary Counsel Division 6—Dispute resolution orders Subdivision 1—Issue of dispute resolution orders 49 When can a dispute resolution order be issued? (1) The chief dispute resolution officer may issue a dispute resolution order to a builder or building owner who is a party to a domestic building work dispute if— (a) the dispute was referred to the chief dispute resolution officer under Division 2 for conciliation; and (b) the chief dispute resolution officer is satisfied that the parties have not resolved the dispute; and (c) the dispute relates to one or more of the following— (i) an alleged breach of a warranty set out in section 8; (ii) an alleged failure to maintain the standard or quality of building work specified in a domestic building contract; (iii) an alleged failure to complete the domestic building work required by a domestic building contract; (iv) an alleged failure to complete the domestic building work required by a domestic building contract within the times specified in the contract; -- 37 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 35 Authorised by the Chief Parliamentary Counsel (v) an alleged failure to pay money for domestic building work performed under the contract; (vi) any other prescribed matter. (2) If the chief dispute resolution officer receives a copy of an assessor's report under Division 5 in relation to a domestic building work dispute, the chief dispute resolution officer must not issue a dispute resolution order earlier than 10 business days after the last of the parties to the dispute is given a copy of the assessor's report in relation to that dispute. (3) Despite subsection (1), the chief dispute resolution officer may issue a dispute resolution order even if a record of agreement exists in relation to the domestic building work dispute if the assessor's report states that there has been a contravention of— (a) this Act or the regulations; or (b) the Building Act 1993 or the regulations under that Act. (4) Subject to subsections (5) and (6), a dispute resolution order takes effect immediately on being served on the person to whom it is issued. (5) Subsection (4) does not apply to a dispute resolution order referred to in section 49D. (6) If an application for review is made under section 63 within the period set out in that section, the dispute resolution order is stayed pending the outcome of the review. -- 38 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 36 Authorised by the Chief Parliamentary Counsel 49A Matters to be considered by chief dispute resolution officer before issuing dispute resolution order (1) In determining whether to issue a dispute resolution order, the chief dispute resolution officer may consider the following matters— (a) any change in the nature of the domestic building work dispute or the circumstances of the parties since the copy of the assessor's report was given to the chief dispute resolution officer under Division 5, including the extent of any partial performance of an action specified in a record of agreement; (b) the conduct of the parties during the conciliation (if applicable); (c) any direction to fix building work given under Division 2 of Part 4 of the Building Act 1993 in relation to the building work that is the subject of the dispute; (d) any other matter the chief dispute resolution officer considers relevant. (2) In addition to the matters in subsection (1), the chief dispute resolution officer may consider whether the issuing of a dispute resolution order to a person would be unfair or unreasonable in the circumstances. 49B What can a dispute resolution order require? (1) A dispute resolution order may require a builder to whom it is issued to take any action or the action specified in the order to do one or more of the following— -- 39 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 37 Authorised by the Chief Parliamentary Counsel (a) rectify any defective domestic building work; (b) rectify any damage caused in the carrying out of the domestic building work or by the defective domestic building work; (c) complete the domestic building work under the domestic building contract. (2) A dispute resolution order may require a building owner to whom it is issued to comply with specified conditions if the builder is required to comply with a dispute resolution order. (3) Without limiting subsection (2), the conditions may include the following— (a) a condition to refrain from doing anything that would prevent or restrict the builder from satisfying a term or condition of the domestic building contract or carrying out domestic building work to meet the requirements of a warranty set out in section 8; (b) a condition requiring a building owner to pay money into the Domestic Building Dispute Resolution Victoria Trust Fund. (4) A dispute resolution order under subsection (1) must specify a reasonable period within which the requirements for the rectification or completion of work must be complied with. -- 40 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 38 Authorised by the Chief Parliamentary Counsel (5) A person required to comply with a dispute resolution order issued under subsection (1) must— (a) carry out the work, if the person is a registered building practitioner under the Building Act 1993 whose registration authorises the person to carry out that work; or (b) cause the work to be carried out by a person who is a registered building practitioner under the Building Act 1993 whose registration authorises the person to carry out that work. 49C Requirements for the payment of money (1) A dispute resolution order may require— (a) a building owner to pay an amount to the builder for completion of the domestic building work under the contract or any part of the contract; or (b) a building owner to pay an amount of money into the Domestic Building Dispute Resolution Victoria Trust Fund to be paid to the builder on completion of the domestic building work under the contract or any part of the contract; or (c) the builder to pay the reasonable cost of domestic building work to be carried out by another builder appointed by the building owner if a dispute resolution order— (i) requires a builder to rectify or complete the domestic building work; and -- 41 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 39 Authorised by the Chief Parliamentary Counsel (ii) includes a finding that the domestic building work carried out by the builder is so defective that it would not be appropriate to allow the builder to rectify or complete the work. (2) A dispute resolution order issued under this section may impose conditions that must be met by another party to the domestic building work dispute before the requirement to pay money takes effect. 49D Dispute resolution order may include findings (1) A dispute resolution order may include a finding by the chief dispute resolution officer that the domestic building work that is the subject of the domestic building work dispute is not incomplete or defective. (2) A dispute resolution order may include a finding that the domestic building work is so defective that it would not be appropriate to allow the builder to rectify or complete the work. (3) A finding referred to in subsection (1) or (2) in a dispute resolution order— (a) is evidence in any proceedings by the builder for the recovery of money from a party to the domestic building work dispute; and (b) may be taken into account in any proceedings in VCAT or a court in determining costs or damages. -- 42 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 40 Authorised by the Chief Parliamentary Counsel 49E Effect of complying with dispute resolution order The rectification or completion of domestic building work in compliance with a dispute resolution order does not absolve the builder from completing the domestic building contract in accordance with the plans and specifications set out in the contract. 49F Notice to insurer (1) If a dispute resolution order is issued to a builder, the chief dispute resolution officer must notify the insurer who provided the builder with the required insurance under the Building Act 1993 of— (a) the dispute resolution order; and (b) the builder's compliance with or failure to comply with the dispute resolution order. (2) The notice must be given after the time for the builder to comply with the dispute resolution order has expired. 49G Payment out of Domestic Building Dispute Resolution Victoria Trust Fund (1) The Director may pay out of the Domestic Building Dispute Resolution Victoria Trust Fund an amount paid into the Fund in compliance with a dispute resolution order. (2) In determining whether a dispute resolution order or part of an order has been complied with, the Director may rely on a statement by the party who paid the amount into the Fund that the dispute resolution order or the part of the order has been complied with. -- 43 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 41 Authorised by the Chief Parliamentary Counsel (3) If the Director proposes to pay an amount out of the Fund in accordance with subsection (1), the Director must give written notice to the parties to the domestic building work dispute of the intention to pay the amount out of the Fund. (4) The notice must state that a party to the domestic building work dispute may apply to VCAT within 10 business days after receiving the notice for review of the decision to pay the amount out of the Fund. (5) The party to the dispute who paid the money into the Fund may give written consent to the payment of the amount out of the Fund to the other party to the dispute or a person authorised by the other party. (6) The Director must pay the amount out of the Fund on the first of the following to occur— (a) the receipt by the Director of the written consent under subsection (5); (b) the end of the prescribed period. (7) In this section— prescribed period means the later of— (a) the period for making an application for review of the decision to pay the amount from the Fund; or (b) if an application for review is made, the period until a determination is made affirming that decision. -- 44 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 42 Authorised by the Chief Parliamentary Counsel Subdivision 2—Amendment or cancellation of dispute resolution order 49H Decision by chief dispute resolution officer on own volition (1) The chief dispute resolution officer may at any time, of the chief dispute resolution officer's own volition, amend or cancel a dispute resolution order. (2) In making a decision under subsection (1), the chief dispute resolution officer may consider any of the following— (a) any change in the nature of the dispute or the circumstances of the parties since the dispute was referred under Division 2; (b) the conduct of the parties; (c) any other matter the chief dispute resolution officer considers relevant. 49I Cancellation of dispute resolution order on failure to comply with order The chief dispute resolution officer may cancel a dispute resolution order if a condition of that order is not complied with. 49J Request to amend or cancel dispute resolution order (1) A party to a domestic building work dispute may, in writing, ask the chief dispute resolution officer to amend or cancel a dispute resolution order relating to the domestic building work that is the subject of the dispute. (2) A request may only be made on the ground that there has been a substantial change in the nature of the dispute or the circumstances -- 45 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 43 Authorised by the Chief Parliamentary Counsel of the parties since the assessor gave a copy of the assessor's report to the chief dispute resolution officer under Division 5. (3) A request must be made within 10 business days after the dispute resolution order is served on the party. (4) The party making the request must give written notice of the request to each other party to the dispute within 2 business days after making the request. 49K Powers of chief dispute resolution officer in considering amending or cancelling dispute resolution order (1) For the purpose of deciding whether to amend or cancel a dispute resolution order, the chief dispute resolution officer may— (a) make any inquiries or obtain any information the chief dispute resolution officer considers necessary; and (b) ask any party to the dispute to provide any information or documents the chief dispute resolution officer considers necessary. (2) The chief dispute resolution officer may fix a period for compliance with a request or requirement under subsection (1) and may extend that period at the request of any party. (3) Any period fixed under section 49L for determining a request under section 49J ceases to run during the period for compliance fixed under this section. -- 46 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 44 Authorised by the Chief Parliamentary Counsel 49L Decision of chief dispute resolution officer on request (1) The chief dispute resolution officer must consider a request under section 49J and, within 5 business days after receiving the request, decide— (a) to amend or cancel the dispute resolution order; or (b) to refuse to amend or cancel the dispute resolution order. (2) The chief dispute resolution officer is taken to have refused the request if the chief dispute resolution officer does not make a decision within 5 business days after the request. 49M Matters to be considered in deciding on request (1) In making a decision on a request under section 49J, the chief dispute resolution officer— (a) must consider— (i) the extent to which any defective or incomplete domestic building work specified in the dispute resolution order has been rectified or completed; and (ii) any change in the nature of the dispute or the circumstances of the parties since the assessor gave a copy of the assessor's report to the chief dispute resolution officer under Division 5; and (b) may consider— (i) the conduct of the parties; and -- 47 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 45 Authorised by the Chief Parliamentary Counsel (ii) any other matter the chief dispute resolution officer considers relevant. 49N Amendment or cancellation of other relevant dispute resolution orders (1) This section applies if the chief dispute resolution officer decides to amend or cancel a dispute resolution order under section 49L. (2) The chief dispute resolution officer may also amend or cancel a dispute resolution order issued to any other party to the domestic building work dispute after giving 5 business days notice to the parties to the dispute. 49O Notice of decision of chief dispute resolution officer (1) The chief dispute resolution officer must give written notice of a decision under section 49L or 49N to the parties to the domestic building work dispute within 2 business days after making the decision. (2) If the chief dispute resolution officer amends a dispute resolution order under section 49L, 49N, or 49T, the chief dispute resolution officer must give a copy of the amended order to each party to the domestic building work dispute without delay. Subdivision 3—Compliance with a dispute resolution order 49P Notice of compliance with work under dispute resolution order (1) A builder who has rectified or completed domestic building work in accordance with a dispute resolution order must give written notice to— -- 48 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 46 Authorised by the Chief Parliamentary Counsel (a) the chief dispute resolution officer; and (b) the building owner. (2) The notice must be given within 2 business days after the domestic building work is carried out. (3) The chief dispute resolution officer may direct an assessor to examine the domestic building work for which notice has been given under this section to confirm whether it complies with the dispute resolution order. 49Q Notice of compliance with payment under dispute resolution order (1) A person who has paid money in accordance with a dispute resolution order must give written notice to the chief dispute resolution officer and the builder or the building owner (as the case requires). (2) The notice must be given within 2 business days after the payment is made. 49R Notice of failure to rectify or complete work (1) A building owner may give written notice to the chief dispute resolution officer that the builder has failed to rectify defective domestic building work or complete domestic building work in accordance with a dispute resolution order. (2) A notice under subsection (1) must be given— (a) within 5 business days after the building owner is given notice under section 49P in relation to the domestic building work; or -- 49 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 47 Authorised by the Chief Parliamentary Counsel (b) if no notice is received under section 49P, within 5 business days after the end of the period specified in the dispute resolution order for the carrying out of the rectification or completion work. 49S Chief dispute resolution officer to direct assessor to examine work (1) If a building owner gives notice to the chief dispute resolution officer under section 49R, the chief dispute resolution officer must direct an assessor to examine the work required to be carried out under the dispute resolution order. (2) The assessor must prepare a written report stating whether or not the dispute resolution order has been complied with. (3) The assessor must give a copy of the written report to the chief dispute resolution officer and each party to the domestic building work dispute. 49T Chief dispute resolution officer may extend period for compliance On receiving a report under section 49S, the chief dispute resolution officer may amend the dispute resolution order to extend the period for compliance with the order if the chief dispute resolution officer is satisfied that the failure to comply with the dispute resolution order was due to factors outside the control of the party required to comply with the order. -- 50 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 48 Authorised by the Chief Parliamentary Counsel 49U Breach of dispute resolution order notice (1) Subject to section 49T, the chief dispute resolution officer must issue a breach of dispute resolution order notice if the chief dispute resolution officer receives an assessor's report under section 49S that states that the builder has failed to comply with a dispute resolution order. (2) The chief dispute resolution officer must serve a copy of the notice on each party to the domestic building work dispute without delay after it is issued. (3) A breach of dispute resolution order notice must state that the builder may apply to VCAT for a review of the decision to issue the notice and the time within which the application may be made. (4) A breach of dispute resolution order notice takes effect in relation to the builder immediately on being served on the builder. (5) The chief dispute resolution officer must given written notice to the Authority of the issue of a breach of dispute resolution order notice at the end of the prescribed period. (6) The chief dispute resolution officer may recover the costs of an examination and report by an assessor under section 49S from the builder in any court of competent jurisdiction as a debt due to the State. (7) Any amount recovered under subsection (6) must be paid into the Domestic Builders Fund. -- 51 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 49 Authorised by the Chief Parliamentary Counsel (8) In this section— prescribed period means the later of— (a) the period for making an application for review of the decision to issue the breach of dispute resolution order notice; or (b) if an application for review is made, the period until a determination is made affirming that decision. 49V Cancellation of breach of dispute resolution order notice (1) The chief dispute resolution officer may cancel a breach of dispute resolution order notice if the parties to the domestic building work dispute to which the dispute resolution order applies have notified the officer of the settlement of the dispute. (2) The notice to the chief dispute resolution officer must be signed by each party to the dispute. (3) The chief dispute resolution officer must give each party to the domestic building work dispute written notice of the cancellation of the breach of dispute resolution order notice. 49W Right of building owner to end domestic building contract (1) A building owner may, by written notice to the chief dispute resolution officer and the builder, end a domestic building contract for domestic building work that is the subject of a dispute resolution order if— -- 52 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 50 Authorised by the Chief Parliamentary Counsel (a) a copy of a breach of dispute resolution order notice has been served on the building owner and the builder in relation to a failure by the builder; and (b) either— (i) the period within which the builder could apply to VCAT for review of the decision to issue the notice has ended and an application for review has not been made; or (ii) the builder has applied to VCAT for review of the decision to issue the notice and the decision has been affirmed; and (c) the building owner has complied with any dispute resolution order issued to the building owner in relation to the domestic building work dispute; and (d) the building owner has complied with any conditions required to be complied with by the building owner before the builder is required to comply with the dispute resolution order. (2) If a building owner ends a domestic building contract under this section, the building owner is released from any further performance of the contract. (3) If a contract is ended under this section, the builder is entitled to a reasonable price for the work carried out under the contract to the date the contract is ended. (4) However, a builder may not recover under subsection (3) more than the builder would have been entitled to recover under the contract. -- 53 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 51 Authorised by the Chief Parliamentary Counsel 49X Right of builder to end domestic building contract (1) A builder may, by written notice to the chief dispute resolution officer and the building owner, end a domestic building contract for domestic building work that is the subject of a dispute resolution order issued to the building owner if— (a) the period within which the building owner could apply to VCAT for a review of the decision to issue the dispute resolution order has ended without an application for review being made; and (b) the date by which the dispute resolution order was required to be complied with has passed and the building owner has failed to comply with the order; and (c) the builder has complied with any conditions required to be complied with by the builder before the building owner is required to comply with the order; and (d) the dispute resolution order included a finding that the building work was not defective or incomplete; and (e) the builder has complied with any dispute resolution order issued to the builder in relation to the domestic building work dispute. (2) If a builder ends a domestic building contract under this section, the builder is released from any further performance of the contract. -- 54 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 52 Authorised by the Chief Parliamentary Counsel Division 7—Powers of Director in relation to domestic building work dispute proceedings 50 Powers of Director to institute and defend proceedings (1) If a building owner is involved in a domestic building work dispute, the Director may institute proceedings on behalf of, or defend proceedings brought against the building owner if the Director is satisfied— (a) that the building owner has a good cause of action or a good defence to an action relating to the dispute; and (b) that it is in the public interest to institute or defend proceedings on behalf of the building owner. (2) The Director must not institute or defend proceedings on behalf of a building owner unless that building owner has given written consent. (3) After consent has been given under subsection (2), the Director may institute or continue with a proceeding or defence on behalf of a building owner even if the building owner revokes the consent. 50A Proceedings and costs (1) If the Director institutes or defends proceedings on behalf of a building owner under section 50— (a) the Director may settle the proceedings either with or without obtaining judgment in the proceedings; and -- 55 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 53 Authorised by the Chief Parliamentary Counsel (b) if a judgment is obtained in the proceedings in favour of the building owner, the Director may take any steps that are necessary to enforce the judgment; and (c) subject to subsections (2) and (3), an amount (other than an amount in respect of costs) recovered in the proceedings is payable to the building owner; and (d) an amount in respect of costs recovered in the proceedings is payable to the Director; and (e) subject to subsection (2), the building owner is liable to pay an amount (not being an amount of costs) awarded against the building owner in the proceedings; and (f) the Director is liable to pay the costs of, or incidental to, the proceedings that are payable by the building owner. (2) If the Director institutes, defends or continues proceedings on behalf of a building owner after the building owner withdraws the consent to the proceedings— (a) the Director must compensate the building owner for— (i) any loss suffered as the result of the loss of any settlement offer made to the building owner; and (ii) out-of-pocket expenses incurred by the building owner during the proceedings after the withdrawal of consent; and -- 56 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 54 Authorised by the Chief Parliamentary Counsel (b) the Director is liable to pay any amount awarded against the building owner in the proceedings. (3) If the Director institutes, defends or continues proceedings on behalf of a building owner after the building owner withdraws the consent to the proceedings or defence, any amount recovered in the proceedings (including any amount for costs) that exceeds the amount payable to the building owner under subsection (2) may be applied to the payment of the costs of and incidental to the proceedings for which the Director is liable or that are incurred by the Director in relation to the proceedings. (4) If, in proceedings instituted or defended on behalf of a building owner under section 50— (a) a party to the proceedings files a counterclaim; or (b) the building owner is entitled to file a counterclaim— and the counterclaim is not or would not be related to the proceedings and to the interests of the building owner in the dispute, the Director may apply to the court hearing the proceedings or to VCAT for an order that the counterclaim not be heard in the course of those proceedings. (5) If the court or VCAT makes an order under subsection (4), the court or VCAT may make any ancillary or consequential orders that it considers fair. -- 57 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 55 Authorised by the Chief Parliamentary Counsel Division 8—Domestic Building Dispute Resolution Victoria Trust Fund 51 Establishment of Domestic Building Dispute Resolution Victoria Trust Fund (1) The Director must establish and maintain a trust fund to be called the Domestic Building Dispute Resolution Victoria Trust Fund. (2) The Director must establish an account with an ADI for the investment of the Fund. (3) There may be paid into the Fund all amounts required or permitted to be paid into the Fund under this Act. (4) There may be paid out of the Fund all amounts required or permitted to be paid from the Fund under this Act. (5) The proceeds of the investment of the Fund are to be paid into the Domestic Builders Fund. 51A Parties may agree to pay amounts into and out of Domestic Building Dispute Resolution Victoria Trust Fund (1) The parties to a domestic building work dispute may agree that a party is to pay an amount into the Domestic Building Dispute Resolution Victoria Trust Fund. (2) The agreement must— (a) be in writing; and (b) set out the conditions for payment of the amount into and out of the Fund. -- 58 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 56 Authorised by the Chief Parliamentary Counsel (3) The agreement must not— (a) be inconsistent with any dispute resolution order issued in relation to the work that is the subject of the dispute; or (b) relate to money paid into the Fund in compliance with a dispute resolution order. (4) If a party to a domestic building work dispute has paid money into the Fund under this section, the parties to the dispute may by agreement give written notice to the Director to pay some or all of that money out of the Fund. (5) The Director may pay money out of the Fund in accordance with the directions in the notice. Division 9—Domestic Building Dispute Resolution Victoria 52 Domestic Building Dispute Resolution Victoria Domestic Building Dispute Resolution Victoria is established. 52A Composition Domestic Building Dispute Resolution Victoria consists of— (a) the chief dispute resolution officer appointed under section 52C; and (b) the conciliation officers appointed under section 52E; and (c) the assessors appointed under section 48. -- 59 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 57 Authorised by the Chief Parliamentary Counsel 52B Functions of Domestic Building Dispute Resolution Victoria The functions of Domestic Building Dispute Resolution Victoria are— (a) to administer the scheme under this Part for the resolution of domestic building work disputes; and (b) any other functions conferred on Domestic Building Dispute Resolution Victoria by or under this Act. 52C Appointment of chief dispute resolution officer The Director must appoint a person employed under Part 3 of the Public Administration Act 2004 as the chief dispute resolution officer. 52D Functions of chief dispute resolution officer The functions of the chief dispute resolution officer are— (a) to perform the functions of Domestic Building Dispute Resolution Victoria; and (b) to assess referrals of domestic building work disputes for conciliation; and (c) to assess and inquire into domestic building work disputes; and (d) to conduct the conciliation of domestic building work disputes; and (e) to issue dispute resolution orders; and (f) any other function conferred on the chief dispute resolution officer by or under this Act. -- 60 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 58 Authorised by the Chief Parliamentary Counsel 52E Appointment of conciliation officers The Director may appoint as a conciliation officer— (a) any person employed under Part 3 of the Public Administration Act 2004; or (b) any other person. 52F Delegation The chief dispute resolution officer may by instrument delegate any of the chief dispute resolution officer's powers and functions under this Act to another conciliation officer. 52G Conciliation officers not subject to direction of Director A conciliation officer is not subject to the direction of the Director in relation to any decision that may be made or discretion that may be exercised by the conciliation officer in relation to a particular domestic building work dispute. 52H Protection against liability for conciliation officers (1) A conciliation officer is not personally liable for anything done or omitted to be done in good faith— (a) in the exercise of a power or the discharge of a duty under this Act; or (b) in the reasonable belief that the act or omission was in the exercise of a power or the discharge of a duty under this Act. -- 61 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 59 Authorised by the Chief Parliamentary Counsel (2) Any liability resulting from an act or omission that, but for subsection (1), would attach to a conciliation officer attaches instead to the State. 52I Confidentiality (1) Subject to this Part, a conciliation officer or an assessor must not disclose to any person any information obtained in the course of carrying out any function under this Part. Penalty: 60 penalty units. (2) A conciliation officer may disclose information obtained in the course of carrying out a function under this Part if the disclosure is made— (a) for the purpose of carrying out that function; or (b) to the Director; or (c) to the Authority; or (d) to the Victorian Managed Insurance Authority; or (e) with the written consent of each person to whom the information relates.". 7 New section 56 inserted After section 55 of the Domestic Building Contracts Act 1995 insert— "56 Certificate of conciliation required to bring proceeding in VCAT to resolve domestic building work dispute (1) A party to a domestic building work dispute must not make an application to VCAT in relation to the dispute unless the chief dispute resolution officer has issued a -- 62 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 60 Authorised by the Chief Parliamentary Counsel certificate of conciliation to the party certifying that the dispute— (a) was not suitable for conciliation ; or (b) was not resolved by conciliation. (2) An application to VCAT to commence proceedings in relation to a domestic building work dispute must be accompanied by a copy of the certificate of conciliation. (3) This section does not apply to proceedings for an order in the nature of an injunction.". 8 New section 57A inserted After section 57 of the Domestic Building Contracts Act 1995 insert— "57A Certain actions not to proceed in a court without certificate of conciliation or leave (1) A party to a domestic building work dispute may not commence an action in a court arising wholly or predominantly from the dispute unless— (a) the chief dispute resolution officer has issued a certificate of conciliation to the party certifying that the dispute— (i) was not suitable for conciliation ; or (ii) was not resolved by conciliation; or (b) the party has been granted leave by the court to bring the proceedings. (2) This section does not apply to proceedings for an order in the nature of an injunction.". -- 63 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 61 Authorised by the Chief Parliamentary Counsel 9 New Subdivision 3 inserted in Division 2 of Part 5 After Subdivision 2 of Division 2 of Part 5 of the Domestic Building Contracts Act 1995 insert— "Subdivision 3—Matters relating to dispute resolution orders 63 Application for review of decision to issue or amend dispute resolution order (1) A person who is required to comply with a dispute resolution order may apply to VCAT for review of the decision to issue or amend the dispute resolution order. (2) An application under subsection (1) must be made within 20 business days after the later of— (a) the day on which the applicant was given a copy of the dispute resolution order or the amendment to the dispute resolution order (as the case requires); or (b) if under the Victorian Civil and Administrative Tribunal Act 1998 the applicant requests a statement of reasons, the day on which the applicant receives that statement of reasons or the applicant is informed under section 46(5) of that Act that a statement of reasons will not be given. (3) An application under subsection (1) must be made on the ground that— (a) the description in the dispute resolution order of the domestic building work that is defective or incomplete is incorrect; or -- 64 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 62 Authorised by the Chief Parliamentary Counsel (b) the period specified in the dispute resolution order for carrying out the rectification or completion work is not reasonable; or (c) a requirement in the dispute resolution order to take a specific action or to refrain from taking action is not necessary or is not reasonable. (4) In determining an application for review of a dispute resolution order, VCAT may also make any order it considers fair in relation to the domestic building contract to which the dispute relates. (5) Without limiting subsection (4), VCAT may do one or more of the following— (a) vary any term of the domestic building contract (including the completion date, the contract price, a provisional sum or the amount to be paid for a prime cost item); (b) declare that a term of the domestic building contract is, or is not, void under section 132; (c) declare void any unjust term of the domestic building contract, or otherwise vary the domestic building contract to avoid injustice. 64 Effect of withdrawal of application for review If, with the leave of VCAT, a party withdraws an application made under section 63 for review of a dispute resolution order, the dispute resolution order takes effect and for that purpose any period for which the order is stayed is not to be counted -- 65 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 63 Authorised by the Chief Parliamentary Counsel in calculating the period for compliance with the order. 65 Application for review of decision to pay money out of Domestic Building Dispute Resolution Victoria Trust Fund (1) A party to a domestic building work dispute may apply to VCAT for review of a decision by the Director under section 49G to pay money out of the Domestic Building Dispute Resolution Victoria Trust Fund. (2) An application under subsection (1) must be made within 10 business days after the party received written notice of the Director's decision under section 49G. 66 Application for review of decision to issue breach of dispute resolution order notice (1) A builder may apply to VCAT for review of a decision of the chief dispute resolution officer to issue a breach of dispute resolution order notice under Part 4. (2) An application under subsection (1) must be made within 20 business days after the later of— (a) the day on which the applicant was served with a copy of the notice; or (b) if under the Victorian Civil and Administrative Tribunal Act 1998 the applicant requests a statement of reasons, the day on which the applicant receives that statement of reasons or the applicant is informed under section 46(5) of that Act that a statement of reasons will not be given. -- 66 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 64 Authorised by the Chief Parliamentary Counsel (3) An application under subsection (1) must be made on the ground that the assessment made in the assessor's report on which the notice was based that the dispute resolution order has not been complied with— (a) was not correct; or (b) is no longer correct because the dispute resolution order has since been complied with. (4) In addition to the parties, the building owner may make submissions to the proceedings on the application for review in relation to— (a) whether there has been a failure to comply with the dispute resolution order; and (b) the nature of the failure to comply with the dispute resolution order. (5) If an application for review is made under this section, any disciplinary action against the builder under the Building Act 1993 as a result of the failure to comply with the dispute resolution order is stayed pending the outcome of the review. 67 Application by building owner for order following ending of domestic building contract (1) This section applies if a building owner ends a domestic building contract in accordance with Division 6 of Part 4. (2) The building owner may apply to VCAT for an order against the builder. -- 67 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 65 Authorised by the Chief Parliamentary Counsel (3) VCAT— (a) must consider— (i) the domestic building contract, including any plans and specifications set out in it; and (ii) any assessor's report provided to the chief dispute resolution officer under Division 6 of Part 4 in relation to the work to which the contract applies; and (b) may make any order it considers fair in the circumstances. (4) Without limiting subsection (3)(b), VCAT may order the builder to pay a sum of money to the building owner in one or more of the following circumstances— (a) if the money is found to be owing to the building owner by the builder; (b) by way of damages; (c) by way of restitution; (d) to refund money paid under the domestic building contract, including any money paid by the building owner in excess of the requirements of the contract. (5) An order under this section must provide for a builder to receive a reasonable price for work carried out under the domestic building contract, not being more than the builder would be entitled to recover under the contract. -- 68 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 66 Authorised by the Chief Parliamentary Counsel 67A Application by builder for order following ending of domestic building contract (1) This section applies if a builder ends a domestic building contract in accordance with Division 6 of Part 4. (2) The builder may apply to VCAT for an order against the building owner. (3) VCAT may make any order it considers fair in the circumstances. (4) Without limiting subsection (3), VCAT may order the building owner to pay a sum of money to the builder— (a) for work performed under the contract; and (b) by way of damages for loss of work as a result of the ending of the contract.". 10 References to Tribunal (1) In sections 11(4), 13(3)(b), 37(3)(b), 38(6), 53, 57, 59, 60, 61, 62, 68(1), 68(3) and 124 of the Domestic Building Contracts Act 1995, for "the Tribunal" (wherever occurring) substitute "VCAT". (2) In sections 53(1), 55, 58, 59A, 60, 62 and 68(2) of the Domestic Building Contracts Act 1995, for "The Tribunal" (wherever occurring) substitute "VCAT". (3) Insert the following heading to section 55 of the Domestic Building Contracts Act 1995— "Who can ask VCAT to resolve a domestic building dispute?". -- 69 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 67 Authorised by the Chief Parliamentary Counsel (4) Insert the following heading to section 57 of the Domestic Building Contracts Act 1995— "VCAT to be chiefly responsible for resolving domestic building disputes". (5) Insert the following heading to section 58 of the Domestic Building Contracts Act 1995— "VCAT may hear disputes while contract still in operation". (6) Insert the following heading to section 59 of the Domestic Building Contracts Act 1995— "VCAT may hear dispute regardless of related criminal proceedings". (7) Insert the following heading to section 60 of the Domestic Building Contracts Act 1995— "VCAT may review and change an insurer's decision". (8) Insert the following heading to section 61 of the Domestic Building Contracts Act 1995— "Who can ask VCAT to review an insurer's decision?". (9) Insert the following heading to section 62 of the Domestic Building Contracts Act 1995— "VCAT may make decision if an insurer fails to make it in time". (10) For the heading to Part 5 of the Domestic Building Contracts Act 1995 substitute— "Part 5—VCAT jurisdiction". -- 70 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 68 Authorised by the Chief Parliamentary Counsel (11) For the heading to Division 2 of Part 5 of the Domestic Building Contracts Act 1995 substitute— "Division 2—Proceedings before VCAT". 11 New section 136 inserted After section 135 of the Domestic Building Contracts Act 1995 insert— "136 Transitional provisions Schedule 1 has effect.". 12 New Schedule 1 inserted Before Schedule 2 to the Domestic Building Contracts Act 1995 insert— "Schedule 1—Transitional provisions 1 Commencement day In this Schedule, commencement day means the day on which Part 2 of the Building Legislation Amendment (Consumer Protection) Act 2016 comes into operation. 2 Complaints and conciliation (1) This Act as in force immediately before the commencement day continues to apply in relation to any complaint made to the Director under Part 3A before the commencement day. (2) For the purposes of subclause (1), the Victorian Civil and Administrative Tribunal Act 1998 applies as if the amendments made by Division 2 of Part 2 of the Building Legislation Amendment -- 71 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 69 Authorised by the Chief Parliamentary Counsel (Consumer Protection) Act 2016 had not been made. 3 Assessors and examinations Part 4, as in force before its substitution by Part 2 of the Building Legislation Amendment (Consumer Protection) Act 2016, continues to apply in relation to any examination by an inspector appointed under that Part 4— (a) that commenced before the commencement day; or (b) that commences on or after the commencement day as a result of a request under section 43F as continued by clause 2. 4 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 Part 2 of the Building Legislation Amendment (Consumer Protection) Act 2016, including any repeals and amendments made as a result of the enactment of that Part. (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 Building Legislation Amendment (Consumer Protection) Act 2016 receives the Royal Assent. -- 72 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 70 Authorised by the Chief Parliamentary Counsel (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 Act 2006) 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 2017. (5) This clause is repealed on 1 July 2019.". Division 2—Amendments to Victorian Civil and Administrative Tribunal Act 1998 13 Definitions At the end of clause 11K of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 insert— "(2) In this Part, words and expressions have the same meanings as they have in the Domestic Building Contracts Act 1995.". 14 Tribunal may request information about domestic building dispute (1) In clause 12A(1) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, for "Commission" substitute "Authority". (2) After clause 12A(2) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 insert— "(3) Subclause (1) does not apply to information that is inadmissible because of section 46C of the Domestic Building Contracts Act 1995.". -- 73 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 71 Authorised by the Chief Parliamentary Counsel 15 New clauses 12B to 12D inserted After clause 12A of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 insert— "12B Costs in relation to domestic building work disputes generally (1) This clause applies despite section 109 to a domestic building dispute that is a domestic building work dispute. (2) Subject to subclause (3), the Tribunal must make an award of costs against an unsuccessful party to the dispute if the dispute had been referred for a conciliation conference and the party— (a) refused to participate in the conciliation conference; or (b) did not participate in the conciliation conference in good faith. (3) The Tribunal is not required to make an award of costs against a party (the first party) under subclause (2) if it is satisfied that it would be unfair to do so, having regard to— (a) whether another party has conducted the proceeding in a way that unnecessarily disadvantaged the first party to the proceeding by conduct such as— (i) failing to comply with an order or direction of the Tribunal without reasonable excuse; (ii) failing to comply with this Act, the regulations, the rules or the enabling enactment; -- 74 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 72 Authorised by the Chief Parliamentary Counsel (iii) asking for an adjournment as a result of subparagraph (i) or (ii); (iv) causing an adjournment; (v) attempting to deceive another party or the Tribunal; (vi) vexatiously conducting the proceeding; and (b) whether another party has been responsible for prolonging unreasonably the time taken to complete the proceeding; and (c) the relevant certificate of conciliation; and (d) any other matter the Tribunal considers relevant. 12C Costs for withdrawal of application (1) This clause applies if— (a) a party to a domestic building work dispute applies to the Tribunal for the review of a decision to issue a dispute resolution order under Part 4 of the Domestic Building Contracts Act 1995; and (b) the party withdraws the application. (2) Despite section 109, the Tribunal must award costs against the party that withdrew the application unless the Tribunal is satisfied that it would be unfair to do so. -- 75 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 73 Authorised by the Chief Parliamentary Counsel 12D Costs on review of decision to issue dispute resolution order (1) This clause applies despite section 109. (2) This clause applies to an application to the Tribunal for review of a decision to issue a dispute resolution order. (3) If the applicant is the builder, the Tribunal may award costs against the builder if the determination of the Tribunal is— (a) to affirm the decision to issue the dispute resolution order; or (b) to vary the dispute resolution order to increase the obligations on the builder or decrease the obligations on the building owner. (4) If the applicant is the building owner, the Tribunal may award costs against the building owner if the determination of the Tribunal is— (a) to affirm the decision to issue the dispute resolution order, including a dispute resolution order that includes a finding referred to in section 49D(1) of the Domestic Building Contracts Act 1995; or (b) to vary the dispute resolution order to increase the obligations on the building owner or to decrease the obligations on the builder. -- 76 of 163 -- Part 2—Resolution of domestic building work disputes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 74 Authorised by the Chief Parliamentary Counsel (5) In determining whether to award costs under this clause, the Tribunal must consider— (a) whether the application was vexatious, frivolous or lacking in substance; and (b) any certificate of conciliation relating to the domestic building work dispute to which the dispute resolution order relates; and (c) any other matter the Tribunal considers relevant.". -- 77 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 75 Authorised by the Chief Parliamentary Counsel Part 3—Regulation of building work and building practitioners Division 1—Interpretation 16 Definitions (1) In section 3(1) of the Building Act 1993, the definition of Building Practitioners Board is repealed. (2) In section 3(1) of the Building Act 1993— (a) for the definition of decision substitute— "decision, in relation to a matter in relation to which an application for review or appeal can be made to the Building Appeals Board, the Authority or VCAT, includes failure to decide;"; (b) for the definition of decision-maker substitute— "decision-maker, in relation to a matter in relation to which an application for review or appeal can be made to the Building Appeals Board, the Authority or VCAT, means the person or body whose decision may be the subject of that review or appeal;". (3) In section 3(1) of the Building Act 1993, insert the following definition— "Building account means the Building account of the Victorian Building Authority Fund under Part 12;". -- 78 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 76 Authorised by the Chief Parliamentary Counsel (4) In section 3(1) of the Building Act 1993, insert the following definitions— "code of conduct means a code of conduct for building practitioners approved under Division 2 of Part 11; officer, in relation to a body corporate, has the same meaning as officer of a corporation has in section 9 of the Corporations Act; 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 a related entity of the body corporate; show cause notice means a show cause notice under section 182;". Division 2—Abolition of Building Practitioners Board 17 Repeal of Division 3 of Part 11 Division 3 of Part 11 of the Building Act 1993 is repealed. 18 Transfer of Building Practitioners Board functions to Victorian Building Authority (1) In sections 25C(1), 25D, 25E(1), 25J, 135(5), 169(1), 170(1), 170(2), 172(1), 174(1), 174A(1), 174A(3), 174A(4), 174A(6), 176(5), 177(1), 178(1), 179(1), 179A(2), 179A(3), 180(1), 181, 182, 182A(1), 182A(3), 188(5), 205A(3) and 241A(2) of the Building Act 1993, for "Building Practitioners Board" (wherever occurring) substitute "Authority". -- 79 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 77 Authorised by the Chief Parliamentary Counsel (2) In sections 25E(4), 169(3), 172(3), 174(2), 174A(5), 178(3), 178(5) and 180(2) of the Building Act 1993 for "The Board" (wherever occurring) substitute "The Authority". (3) In sections 25E(3), 25E(4), 25E(5), 25J, 169A, 170(1), 172(2), 172(4), 172(4A), 172(5), 172A, 173(2), 174(3), 177(3), 178(2), 178(3), 178(4), 178(6), 179(1), 179(2), 179(3), 180A, 182(1)(ba), (bb) and (c), 182(2), 182(3), 182(4), 182A(1) and 182A(3) of the Building Act 1993 for "the Board" (wherever occurring) substitute "the Authority". (4) In sections 25H(1) and 173(1) of the Building Act 1993, for "Building Practitioners Board" substitute "Victorian Building Authority". (5) In section 147(1) of the Building Act 1993 omit "(other than against a decision of the Building Practitioner's Board)". (6) For section 177(2) of the Building Act 1993 substitute— "(2) The appointment may be made on the initiative of the Authority or after a person has requested the Authority to hold an inquiry.". (7) Sections 166(4)(b), 178(1)(c), 182(1)(b), 182A(2), 204(1)(c), 205A(1)(d), 237(1) and 241(2) of the Building Act 1993 are repealed. (8) After section 197(a) of the Building Act 1993 insert— "(ab) to administer the scheme under Part 11 for the registration of building practitioners; (ac) to supervise and monitor the conduct and ability to practise of registered building practitioners; -- 80 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 78 Authorised by the Chief Parliamentary Counsel (ad) to make recommendations to the Minister about the qualifications for registration of building practitioners; (ae) to issue certificates of consent;". (9) In sections 203(6) and 205B(1) of the Building Act 1993, omit "the Building Practitioners Board,". (10) Section 205L of the Building Act 1993 is repealed. (11) In section 228(1)(d) of the Building Act 1993, omit "other than the Building Practitioners Board". (12) In section 239 of the Building Act 1993, for "Building Practitioner's Board" substitute "Victorian Building Authority". (13) In section 241(2B) of the Building Act 1993 for "Part 12A" substitute "Part 11 or 12A". (14) In section 242(2) of the Building Act 1993, for ", the Authority or the Building Practitioners Board" substitute "or the Authority". (15) In section 259A(2) of the Building Act 1993, insert the following definition— "Building Practitioners Board means 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;". (16) In section 261(1)(o) of the Building Act 1993 omit ", the Building Practitioners Board". -- 81 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 79 Authorised by the Chief Parliamentary Counsel Division 3—Registration of building practitioners 19 Application for registration Section 169(2A) of the Building Act 1993 is repealed. 20 Registration (1) In section 170(1)(b)(ii) of the Building Act 1993, before "holds" insert "unless the regulations otherwise provide in relation to a particular category or class,". (2) For section 170(1)(c) of the Building Act 1993 substitute— "(c) is a fit and proper person to practise as a building practitioner, having regard to all relevant matters, including the character of the applicant; and". 21 New section 170A inserted After section 170 of the Building Act 1993 insert— "170A Conditions on registration 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.". 22 New section 171 substituted For section 171 of the Building Act 1993 substitute— "171 Period of registration (1) Registration under this Part lasts for a period of up to 5 years as determined by the Authority. -- 82 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 80 Authorised by the Chief Parliamentary Counsel (2) Subsection (1) does not take away from any provision about the suspension or cancellation of registration.". 23 New sections 172AA, 172AAB and 172AAC inserted After section 172 of the Building Act 1993 insert— "172AA Renewal of registration (1) The Authority may grant a renewal of registration on the application of the registered building practitioner. (2) This Part applies to a renewal of registration in the same manner as it applies to a registration. (3) A prescribed qualification or the equivalent of a prescribed qualification accepted under section 170 for the registration of a building practitioner is taken to be the appropriate prescribed qualification for the renewal of that registration. (4) Without limiting subsection (2), 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. (5) The regulations may provide for the payment of a registration renewal fee by instalments. -- 83 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 81 Authorised by the Chief Parliamentary Counsel 172AAB Suspension for non-payment of instalment renewal of registration fee (1) This section applies if the regulations provide for the payment of a registration renewal fee by instalments. (2) If a registered building practitioner fails to pay an instalment of the appropriate registration renewal fee within the time allowed under the regulations, the Authority may, by written notice to the practitioner, suspend the practitioner's registration. (3) A suspension under this section terminates on the payment of the appropriate instalment. (4) If a registration has remained suspended under this section for more than 3 months, the Authority may, by written notice to the registered building practitioner, cancel the registration. 172AAC Surrender of registration A registered building practitioner may, with the consent of the Authority, surrender the practitioner's registration.". 24 Offences (1) For section 176(1)(b) of the Building Act 1993 substitute— "(b) building surveyor; or". (2) Section 176(1A)(a) of the Building Act 1993 is repealed. -- 84 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 82 Authorised by the Chief Parliamentary Counsel (3) For section 176(2) and (2AA) of the Building Act 1993 substitute— "(2) A person must not carry out work as a building surveyor unless— (a) the person is registered under this Part as a building surveyor; and (b) the person's registration authorises the person to carry out that work. Penalty: 500 penalty units. (2AA) 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.". (4) For section 176(2A) of the Building Act 1993 substitute— "(2A) A builder must not carry out domestic building work under a major domestic building contract unless— (a) the builder is registered under this Part; and (b) the builder's registration authorises the builder to carry out that work. Penalty: 500 penalty units.". (5) In section 176(7) of the Building Act 1993 after "includes work" insert "(other than domestic building work)". -- 85 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 83 Authorised by the Chief Parliamentary Counsel 25 New Divisions 2, 3 and 4 of Part 11 substituted for Divisions 2 and 2A For Divisions 2 and 2A of Part 11 of the Building Act 1993 substitute— "Division 2—Codes of conduct for building practitioners 177 Authority may approve codes of conduct for building practitioners (1) The Authority may approve codes of conduct for building practitioners in accordance with this Division. (2) A code of conduct may make different provision for different categories or classes of building practitioners. 177A Code of conduct prepared by Authority or industry (1) A code of conduct approved by the Authority under this Division may be— (a) a code of conduct prepared by the Authority; or (b) a code of conduct prepared and submitted to the Authority by an organisation representing building practitioners. (2) In preparing a code of conduct under subsection (1)(a), the Authority— (a) must consult with any prescribed organisation representing building practitioners; and (b) may consult with any other organisation. -- 86 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 84 Authorised by the Chief Parliamentary Counsel (3) The Authority may make changes to a code of conduct submitted to the Authority under subsection (1)(b). (4) Before making changes to a code of conduct under subsection (3), the Authority— (a) must consult with the organisation that submitted the code of conduct; and (b) may consult with any other organisation. 177B Code of conduct must be published A code of conduct approved by the Authority under this Division must be published in the Government Gazette. 177C Commencement of code of conduct A code of conduct comes into operation on the later of— (a) the day on which the code of conduct is published in the Government Gazette; or (b) the day specified in the code of conduct as the day on which the code of conduct comes into operation. 177D Building practitioners must comply with approved code of conduct A building practitioner must comply with any code of conduct approved under this Division that is applicable to the building practitioner's category or class of registration. Note Section 179(1)(b) provides that disciplinary action may be taken by the Authority against a registered building practitioner who fails to comply with an approved code of conduct. -- 87 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 85 Authorised by the Chief Parliamentary Counsel Division 3—Disciplinary proceedings and action Subdivision 1—Preliminary 178 Meaning of disciplinary action In this Division, disciplinary action in relation to a registered building practitioner means one or more of the following— (a) reprimand the practitioner; (b) direct the practitioner— (i) to do a specified thing, including to rectify or complete specified building work; or (ii) not to do a specified thing; (c) require the practitioner to successfully complete a specified course of training within a specified period; (d) impose a penalty of not more than 100 penalty units unless— (i) a charge has been filed in the Magistrates' Court in relation to the matter; or (ii) the matter has been dealt with by a court exercising its criminal jurisdiction; or (iii) the matter has been dealt with by the issue of an infringement notice; (e) vary a condition (other than a prescribed condition), or impose a condition, on the practitioner's registration; -- 88 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 86 Authorised by the Chief Parliamentary Counsel (f) suspend registration for not more than 3 years either wholly, or as a partial suspension in relation to a specified matter; (g) cancel registration; (h) disqualify the practitioner from being registered for a specified period of up to 3 years. 178A Division applies to suspended practitioners (1) Subject to subsection (2), this Division (except Subdivision 3) applies to a building practitioner whose registration is suspended but who was registered at the time the conduct that forms the ground for disciplinary action occurred as if the practitioner were a registered building practitioner. (2) The Authority must not give a show cause notice under Subdivision 5 in relation to a matter to a building practitioner whose registration is suspended after the end of the 3 year period immediately following the suspension if the suspension relates to that matter. Subdivision 2—Grounds for disciplinary action 179 Grounds for disciplinary action (1) Each of the following is a ground for which disciplinary action may be taken against a registered building practitioner— (a) the practitioner has contravened— (i) this Act or the regulations under this Act; or -- 89 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 87 Authorised by the Chief Parliamentary Counsel (ii) the Domestic Building Contracts Act 1995 or the regulations under that Act; or (iii) a prescribed Act or law or a prescribed provision of a prescribed Act or law; (b) the practitioner has engaged in unprofessional conduct or has failed to comply with a code of conduct; (c) the practitioner has failed to comply with an order or direction (other than an oral direction to fix building work under Division 2 of Part 4) given to the practitioner— (i) by the relevant building surveyor under this Act; or (ii) an authorised person under Division 2 of Part 4; (d) the practitioner has failed to comply with a determination or direction of the Authority or VCAT under this Act or the Domestic Building Contracts Act 1995; (e) the practitioner has failed to comply with a reasonable direction of an insurer in relation to— (i) the completion or rectification of defective building work; or (ii) any payment to be made to the insurer in relation to the rectification or completion of defective building work in accordance with the required insurance; -- 90 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 88 Authorised by the Chief Parliamentary Counsel (f) the practitioner has engaged in conduct in relation to the practitioner's practice as a building practitioner that is— (i) constituted by a pattern of incompetence; or (ii) negligent in a particular matter; (g) the Authority believes on reasonable grounds that the practitioner is no longer a fit and proper person to practise as a building practitioner; (h) the practitioner has obtained the practitioner's registration under this Part or any required insurance on the basis of information or a document that was false or misleading; (i) the practitioner has failed to comply with a condition of the practitioner's registration; (j) the practitioner has failed to comply with an undertaking given to the Authority under this Act; (k) the practitioner has made or purported to make an appointment of a building surveyor in contravention of section 78(1A) or has accepted such an appointment or purported appointment in contravention of section 78(1B); (l) the practitioner has not completed the relevant prescribed continuing professional development requirements (if any); (m) the practitioner has not paid a fee or other amount required to be paid under— (i) this Act or the regulations; or -- 91 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 89 Authorised by the Chief Parliamentary Counsel (ii) the Domestic Building Contracts Act 1995 or the regulations under that Act; or (iii) a prescribed Act or law; (n) the practitioner has not paid an adjudicated amount due to be paid under the Building and Construction Industry Security of Payment Act 2002 and— (i) the period for making an adjudication review application under that Act in relation to that amount has expired; and (ii) the practitioner has not made an adjudication review application in relation to that amount within that period; (o) a ground for immediate suspension exists in relation to the practitioner. (2) The Authority may make inquiries to determine whether a ground exists for taking disciplinary action under this Part. 179A Conduct of body corporate or partnership to be conduct of building practitioner director or partner If a body corporate or a partnership of which a registered building practitioner is a director or partner contravenes this Act or the regulations or the Domestic Building Contracts Act 1995 or the regulations under that Act in the carrying out of building work, that contravention is taken to have been a contravention by the registered building practitioner for the purposes of section 179. -- 92 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 90 Authorised by the Chief Parliamentary Counsel Subdivision 3—Immediate suspension of registration 180 Grounds for immediate suspension A ground for the immediate suspension of the registration of a registered building practitioner exists if— (a) the practitioner is insolvent under administration or is an officer of a body corporate that is insolvent under administration; or (b) the practitioner has contravened— (i) a prescribed provision of this Act or the regulations; or (ii) a prescribed provision of the Domestic Building Contracts Act 1995 or the regulations under that Act; or (iii) a prescribed Act or law or a prescribed provision of a prescribed Act or law; or (c) the practitioner has been convicted of an indictable offence involving fraud, dishonesty, drug trafficking or violence; or (d) the practitioner has ceased to be covered by the required insurance; or (e) the practitioner does not comply or no longer complies with a condition prescribed under section 170(1)(d) or prescribed or imposed under section 170A for the registration. -- 93 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 91 Authorised by the Chief Parliamentary Counsel 180A Immediate suspension of registration (1) The Authority may, by written notice given to a registered building practitioner, immediately suspend the registration of the registered building practitioner if the Authority reasonably believes a ground for immediate suspension exists under section 180(1) (other than paragraph (d)) in relation to the practitioner. (2) The Authority must, by written notice given to a registered building practitioner, immediately suspend the registration of the registered building practitioner if the Authority reasonably believes that the practitioner has ceased to be covered by the required insurance. (3) The Authority may suspend a registration under subsection (1) either wholly or as a partial suspension in relation to a specified matter. (4) The notice must state the following— (a) the decision; (b) the ground or grounds under section 180 for the decision; (c) the period of the suspension; (d) that the building practitioner may apply to VCAT under this Part for review of the decision. (5) The Authority must provide written reasons for the immediate suspension within 5 business days after giving the notice. (6) The Authority must give the building practitioner a show cause notice under section 182 without delay after giving the notice under this section. -- 94 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 92 Authorised by the Chief Parliamentary Counsel 180B Period of suspension (1) A suspension under section 180A— (a) takes effect when the notice is given to the building practitioner; and (b) continues for the period specified in the notice unless either of the following occurs— (i) the suspension is revoked by the Authority; (ii) the suspension is set aside on an application for review under this Part. (2) The Authority must revoke a suspension under section 180A(1) if the Authority determines that no ground for immediate suspension under that provision exists. (3) The Authority must revoke a suspension under section 180A(2) if the practitioner gives the Authority written proof that— (a) the practitioner is covered by the required insurance; and (b) the insurance cover is provided until the next anniversary of the practitioner's registration. Subdivision 4—Ability to practise 181 Ability to practise (1) This section applies if the Authority is satisfied that a registered building practitioner is incapable of practising as a building practitioner because of physical or mental infirmity. -- 95 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 93 Authorised by the Chief Parliamentary Counsel (2) The Authority may decide to— (a) suspend the person's registration for not more than 3 years; or (b) cancel the person's registration. (3) A decision under subsection (2)(a) may be made more than once. (4) Subdivision 5 and Division 4 apply to a proposed decision under this section as if— (a) the circumstances in subsection (1) were a ground for disciplinary action; and (b) the decision were a disciplinary action. 181A Revocation of suspension (1) A person may apply to the Authority to revoke the suspension of the person's registration under section 181. (2) An application must be made in the form and contain the information required by the Authority. (3) The Authority must consider the application unless the Authority considers it to be frivolous, vexatious or lacking in substance. (4) The Authority may at any time revoke a suspension under section 181 if it is satisfied that the registered building practitioner is capable of practising as a building practitioner. (5) The Authority must, without delay, give written notice of the decision to the registered building practitioner. -- 96 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 94 Authorised by the Chief Parliamentary Counsel Subdivision 5—Show cause process 182 Show cause notice (1) If the Authority reasonably believes a ground for taking disciplinary action against a registered building practitioner exists and proposes to take that action, the Authority must give the registered building practitioner a notice under this section (a show cause notice). (2) The show cause notice must state the following— (a) that the Authority proposes to take disciplinary action; (b) the disciplinary action proposed to be taken; (c) the registration in relation to which the proposed action is to be taken; (d) the ground for the proposed action; (e) an outline of the facts and circumstances forming the basis for the ground for the proposed action; (f) an invitation to the registered building practitioner to show within a stated period (the show cause period) why the proposed action should not be taken. (3) The show cause period must be a period ending at least 14 days after the show cause notice is given to the registered building practitioner. (4) The Authority, at the request of the registered building practitioner, may extend the show cause period stated in the show cause notice and in that case the extended period becomes the show cause period. -- 97 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 95 Authorised by the Chief Parliamentary Counsel 182A Representations about show cause notice (1) The registered building practitioner may— (a) make written representations about the show cause notice to the Authority within the show cause period; or (b) make oral representations about the show cause notice to the Authority at the time within the show cause period, and at the place, agreed by the Authority and the registered building practitioner. (2) The Authority must keep a record of oral representations made to it under subsection (1)(b). 182B Decision about whether to take disciplinary action Within 28 days after the show cause period ends, the Authority must decide whether a ground exists to take disciplinary action against the registered building practitioner. 182C Ending show cause process without further action If the Authority no longer believes a ground exists to take disciplinary action against the registered building practitioner, the Authority— (a) must take no further action about the show cause notice; and (b) must revoke any suspension under section 180A(1) that relates to the matter that is the subject of the show cause notice; and -- 98 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 96 Authorised by the Chief Parliamentary Counsel (c) must, as soon as practicable after making its decision, give notice to the registered building practitioner that no further action will be taken about the show cause notice. 182D Disciplinary or other action by Authority on giving of undertaking If the Authority believes a ground exists to take disciplinary action against the registered building practitioner, the Authority may— (a) accept an undertaking from the practitioner under section 234B; and (b) do any of the following— (i) defer taking the proposed disciplinary action for a specified period; (ii) take disciplinary action that the Authority considers to be less serious than the proposed disciplinary action; (iii) take no further action. 182E Taking disciplinary action after show cause notice (1) If the Authority believes a ground exists to take disciplinary action against the registered building practitioner, the Authority may— (a) take the disciplinary action proposed in the show cause notice; or (b) on the basis of representations made or new evidence received, take disciplinary action that the Authority considers to be less serious than the disciplinary action referred to in paragraph (a). -- 99 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 97 Authorised by the Chief Parliamentary Counsel (2) The Authority must, as soon as practicable after making its decision, give a written notice about the decision to the registered building practitioner. (3) The notice must state the following— (a) the decision; (b) the reasons for the decision; (c) that the practitioner may apply under Division 4 for review of the decision within 28 days. (4) The decision takes effect on the later of— (a) the day the notice is given to the registered building practitioner; or (b) the day stated in the notice. Subdivision 6—General provisions relating to disciplinary action 183 Notice of decisions (1) The Authority must give notice of a decision under this Division in relation to a registered building practitioner to any person who made a complaint to the Authority about the matter to which the decision relates. (2) If the Authority is aware that a registered building practitioner is a member of a professional association or is employed by a particular person, the Authority must cause notice of any decision concerning the practitioner made under this Division to be given to that association or employer without delay after the decision takes effect. -- 100 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 98 Authorised by the Chief Parliamentary Counsel 183A Building practitioner to give notice A person who has had a registration as a building practitioner cancelled or suspended under this Division must, without delay after the decision to cancel or suspend the registration takes effect, give notice in the prescribed form (if any) of the cancellation or suspension to any person who has a contract with the person relating to, or arising out of, the carrying out of the practitioner's work as a registered building practitioner. Penalty: 50 penalty units. 183B Complaint privileged A person is not liable in any way for any loss, damage, or injury suffered by another person solely because the first person in good faith— (a) lodged a complaint with the Authority in relation to a registered building practitioner; or (b) produced or gave a document or any information or evidence to the Authority in relation to a matter that constitutes or may constitute a contravention of— (i) this Act or the regulations; or (ii) the Domestic Building Contracts Act 1995 or the regulations under that Act; or (iii) a prescribed Act or law or a prescribed provision of a prescribed Act or law. -- 101 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 99 Authorised by the Chief Parliamentary Counsel 183C Consequences of suspension of registration (1) While a person's registration as a building practitioner is suspended, the practitioner is taken not to be registered under this Part either wholly or, if it is a partial suspension, in relation to the matter specified in the suspension. (2) A person whose registration as a building practitioner is suspended may apply for a renewal of that registration during the period of suspension but the renewed registration remains suspended either wholly or as a partial suspension (as the case requires) in accordance with the terms of the suspension until the registration is cancelled or the suspension ends or is revoked. 183D Revocation of suspension (1) The Authority may at any time revoke a suspension under Subdivision 5 if satisfied that it is appropriate to do so. (2) The Authority must, without delay, give written notice of the revocation to the registered building practitioner. 183E Authority may recover penalties Any amount that the Authority requires a registered building practitioner to pay by way of a penalty under this Division may be recovered in any court of competent jurisdiction as a debt due to the Authority. -- 102 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 100 Authorised by the Chief Parliamentary Counsel Division 4—Review of decisions relating to building practitioners Subdivision 1—Preliminary 184 Definitions In this Division— affected person means a person directly affected by a reviewable decision; reviewable decision means any of the following decisions under this Act— (a) a decision to refuse to grant registration; (b) a decision to impose conditions (other than prescribed conditions) on registration; (c) a decision to refuse to renew registration; (d) a decision to immediately suspend registration; (e) a decision by the Authority to take disciplinary action; (f) a decision to give a registered building surveyor or a member of a class of registered building surveyors a direction under section 205M; (g) another decision prescribed by the regulations as being a decision for which a person may apply for internal review or review by VCAT under this Division; -- 103 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 101 Authorised by the Chief Parliamentary Counsel review decision has the meaning set out in section 185C; reviewer means a person deciding an internal review under this Division. Subdivision 2—Internal review 185 Applying for internal review (1) This section applies if a reviewable decision is made by a delegate of the Authority other than a Commissioner or the chief executive officer of the Authority. (2) A person who is directly affected by a reviewable decision may apply to the Authority for an internal review of the decision. (3) Subject to subsection (4), the application must be made within 28 days after the day the affected person is given notice of the reviewable decision. (4) The Authority may, at any time, extend the time for applying for an internal review. (5) An application for an internal review must be in writing and state fully the grounds of the application. (6) Subject to subsection (7), an application for an internal review stays the operation of the decision. (7) An application for an internal review does not stay the operation of a decision to immediately suspend registration. -- 104 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 102 Authorised by the Chief Parliamentary Counsel 185A Who may conduct an internal review? (1) The Authority must appoint an employee of the Authority to conduct an internal review. (2) An internal review must not be conducted by— (a) the person who made the reviewable decision; or (b) a person who was involved in the matters that gave rise to the reviewable decision; or (c) a person who holds a less senior position than a person referred to in paragraph (a) or (b). 185B Internal review (1) The reviewer must conduct the internal review on— (a) the material before the Authority that led to the reviewable decision; and (b) the reasons for the reviewable decision; and (c) any other material that was not available at the time of the reviewable decision that the reviewer is satisfied is relevant. (2) For the review, the reviewer must give the affected person a reasonable opportunity to make written or oral representations to the reviewer. 185C Review decisions (1) The reviewer must make a decision (the review decision) to— (a) affirm the reviewable decision; or -- 105 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 103 Authorised by the Chief Parliamentary Counsel (b) amend the reviewable decision; or (c) substitute another decision for the reviewable decision. (2) If the review decision affirms the reviewable decision, for the purpose of an application for review by VCAT, the reviewable decision is taken to be the review decision. (3) If the review decision amends the reviewable decision, the reviewable decision as amended is taken to be the review decision. (4) If the review decision substitutes another decision for the reviewable decision, the substituted decision is taken to be the review decision. 185D Notice of review decision (1) The Authority must, as soon as practicable after the review decision is made, give the affected person notice (the review notice) of the review decision. (2) The review notice must state the following— (a) the reasons for the decision; (b) that the affected person may apply to VCAT for review of the decision under this Division. (3) If the Authority does not give the review notice within the review period the reviewer is taken to have made a review decision affirming the reviewable decision. (4) In this section— review period means the longer of— (a) the relevant period prescribed by the regulations (if any); or -- 106 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 104 Authorised by the Chief Parliamentary Counsel (b) the period ending 28 days after the application is made. Subdivision 3—Review by VCAT 186 Application for review by VCAT of reviewable decision (1) An affected person who has applied for an internal review of a reviewable decision under Subdivision 2 and is dissatisfied with the review decision may apply to VCAT for review of the review decision. (2) An affected person who was not eligible to apply for an internal review of a reviewable decision may apply to VCAT for review of the reviewable decision. (3) An affected person may apply to VCAT (without applying for internal review) for review of a reviewable decision to immediately suspend, suspend or cancel a registration. (4) An application for review of a reviewable decision or review decision must be made within— (a) in the case of an application under subsection (1), 14 days after the end of the review period for internal review; or (b) in any other case, 28 days after the reviewable decision or review decision is made. 187 Proceedings and decision (1) After hearing the matter, VCAT may— (a) affirm the review decision or reviewable decision; or -- 107 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 105 Authorised by the Chief Parliamentary Counsel (b) amend the review decision or reviewable decision; or (c) substitute another decision for the review decision or reviewable decision. (2) Subject to subsection (3), an application for review stays the operation of the decision. (3) An application for review does not stay the operation of a decision to immediately suspend registration.". 26 Regulation-making powers After section 261(1)(h) of the Building Act 1993 insert— "(ha) specifying the work that a category or class of registration as a building surveyor or building inspector authorises a person to carry out; (hb) specifying the domestic building work that a category or class of registration as a builder authorises a person to carry out;". Division 4—Regulation of owner-builders 27 Restrictions on owner-builder (1) In section 25B of the Building Act 1993 for "$12 000" substitute "the prescribed amount". (2) At the end of section 25B of the Building Act 1993 insert— "(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.". -- 108 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 106 Authorised by the Chief Parliamentary Counsel 28 Further restrictions on owner-builders (1) For section 25B(1)(b) of the Building Act 1993 substitute— "(b) is a builder whose registration under Part 11 authorises the carrying out of that work; or". (2) After section 25B(1) of the Building Act 1993 insert— "(1A) An owner of land or a building who is required under this section to be issued with a certificate of consent to carry out domestic building work as builder must not enter into a major domestic building contract with another person to carry out the work or any part of the work unless the person is registered as a builder under Part 11 and the registration authorises the person to carry out that work. Penalty: 60 penalty units, in the case of a first offence. 120 penalty units, in the case of a second or subsequent offence. (1B) Subsection (1A) does not apply to an owner of land or a building if the owner took reasonable steps to ensure that the person carrying out the building work is registered as a builder under Part 11 and that the registration authorises the person to carry out that work.". 29 Application for owner-builder certificate of consent For section 25C(2)(c) of the Building Act 1993 substitute— "(c) be accompanied by— (i) the prescribed information; and (ii) the prescribed application fee.". -- 109 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 107 Authorised by the Chief Parliamentary Counsel 30 Decision on application for certificate of consent (1) After section 25E(1)(a) of the Building Act 1993 insert— "(ab) the applicant has the prescribed knowledge of the duties and responsibilities of an owner-builder; and". (2) In section 25E(1) of the Building Act 1993, for paragraphs (e), (f) and (g) substitute— (e) the applicant has not been issued with a building permit for the carrying out of domestic building work by the applicant as a builder on land owned by the applicant or a related body in the previous 5 years other than in relation to— (i) the dwelling on the land to which the application relates; or (ii) a Class 10 building that is ancillary to the dwelling on the land to which the application relates; and (f) if the applicant co-owns the land to which the application relates with another person, a building permit has not been issued to that person for the carrying out of domestic building work by that person as a builder on land owned by that person in the previous 5 years other than in relation to— (i) the dwelling on the land to which the application relates; or (ii) a Class 10 building that is ancillary to the dwelling on the land to which the application relates; and (g) if the applicant was the co-owner of land (other than land to which the application relates) with another person in the previous 5 years, a building permit has not been -- 110 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 108 Authorised by the Chief Parliamentary Counsel issued to that person for the carrying out of domestic building work by that person as a builder on that land in that 5 year period; and". (3) For section 25E(2) of the Building Act 1993 substitute— "(2) The Authority must refuse to issue a certificate of consent to an applicant if the Authority is satisfied that the applicant has at any time entered into a contract to sell a building constructed by the applicant without obtaining the required insurance in contravention of section 137B(2)(b).". (4) For section 25E(6) of the Building Act 1993 substitute— "(6) In this section— Class 10 building has the same meaning as it has in the Building Code of Australia; related body means a body corporate of which the applicant is a director or the trustees of a trust of which the applicant is a beneficiary.". 31 Certificate of consent (1) For section 25G(b) of the Building Act 1993 substitute— "(b) expires— (i) at the end of the prescribed period, if a building permit is not issued in respect of the building work to which the certificate relates within that period; or (ii) on the date that the building permit lapses, if a building permit is issued in respect of the building work to which -- 111 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 109 Authorised by the Chief Parliamentary Counsel the certificate relates within the prescribed period.". (2) At the end of section 25G of the Building Act 1993 insert— "(2) In this section— prescribed period means— (a) the prescribed by the regulations (if any); or (b) if a period is not prescribed, 12 months.". 32 Register of certificates After section 25H(2) of the Building Act 1993 insert— "(3) The Authority may publish prescribed information kept on the register of certificates of consent on the Authority's website.". 33 Repeal of section 25I Section 25I of the Building Act 1993 is repealed. 34 New section 227AA inserted In Division 1A of Part 13 of the Building Act 1993, before section 227A insert— "227AA Definition of owner-builder In this Division— owner-builder, in relation to domestic building work, means— (a) a person who is required under section 25B to be issued with a certificate of consent for the work; or -- 112 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 110 Authorised by the Chief Parliamentary Counsel (b) an owner of the land or building to which the work relates who is— (i) an architect who is registered under the Architects Act 1991; or (ii) carrying out the work in accordance with an emergency order, a building notice or a building order made under Part 8.". 35 Functions of performance auditors In section 227B of the Building Act 1993 after "registered building practitioners" insert "or owner-builders". 36 Powers of performance auditors In section 227C(3)(a) and (c) of the Building Act 1993, after "registered building practitioner" insert "or an owner-builder". Division 5—Regulation of building surveyors 37 New Division 1 heading inserted in Part 6 In Part 6 of the Building Act 1993, before section 76, insert the following heading— "Division 1—Appointments of private building surveyors". 38 When may a private building surveyor be appointed? After section 78(1) of the Building Act 1993 insert— "(1A) A builder who has entered into a major domestic building contract or who acts or proposes to act as a domestic builder in relation to domestic building work must not -- 113 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 111 Authorised by the Chief Parliamentary Counsel appoint a private building surveyor on behalf of the owner of the land on which the domestic building work is to be carried out. (1B) A building surveyor must not accept an appointment referred to in subsection (1A). (1C) Nothing in subsection (1A) or (1B) affects the validity of any action taken by a building surveyor who is appointed in contravention of those subsections.". 39 Circumstances in which private building surveyor may not act (1) In section 79(1) of the Building Act 1993— (a) omit "accept an appointment to"; (b) after "section 76" (where first occurring) insert "or 77"; (c) for "if the private building surveyor" substitute "if the private building surveyor or a related person". (2) After section 79(1) of the Building Act 1993 insert— "(1A) A private building surveyor must not carry out any function as a private building surveyor in relation to which the private building surveyor or a related person has a conflict of interest.". (3) In section 79(2) of the Building Act 1993, after "subsection (1)" insert "or (1A)". (4) In section 79(2A) of the Building Act 1993— (a) omit "accept an appointment to"; (b) after "section 76" insert "or 77". -- 114 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 112 Authorised by the Chief Parliamentary Counsel (5) After section 79(3) of the Building Act 1993 insert— "(4) In this section— 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 director of a body corporate, the body corporate or another director of the body corporate; or (c) any related body corporate of a body corporate of which the private building surveyor is a director; or (d) any employer or employee of the private building surveyor.". 40 New Division 2 inserted in Part 6 In Part 6 of the Building Act 1993, after section 80, insert the following heading— "Division 2—Termination of appointment with consent of Authority". -- 115 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 113 Authorised by the Chief Parliamentary Counsel 41 New Division 3 inserted in Part 6 After section 83 of the Principal Act insert— "Division 3—Appointment by Authority of manager of business of private building surveyor Subdivision 1—Preliminary 83A Definition In this Division— expenses, in relation to a manager, means— (a) the remuneration payable to the manager; and (b) the expenses incurred in the course of management under this Division; and (c) any reimbursement of the manager under this Division. Subdivision 2—Appointment of manager 83B Appointment of manager (1) The Authority may appoint a manager for a private building surveyor's business in any of the following circumstances if the Authority is of the opinion that it is necessary to make the appointment in order to protect the interests of other persons— (a) the private building surveyor has requested the appointment of a manager; (b) the private building surveyor's registration under this Act has been suspended or cancelled; -- 116 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 114 Authorised by the Chief Parliamentary Counsel (c) the private building surveyor has died; (d) the private building surveyor is in prison; (e) the private building surveyor has become a represented person within the meaning of the Guardianship and Administration Act 1986; (f) the private building surveyor has become insolvent under administration; (g) the private building surveyor has ceased to carry out the functions of a private building surveyor. (2) A manager may only be appointed in relation to, and the manager's powers and functions under this Division are limited to, the private building surveyor's functions under this Act and any functions that are reasonably necessary to support the carrying out of those functions. (3) A manager is eligible for reappointment. 83C Who may be appointed as a manager? A person must not be appointed as a manager of a private building surveyor's business unless the person is— (a) registered as a building surveyor under Part 11 and that registration (including any conditions of registration) authorises the person to carry out all work as a building surveyor; or -- 117 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 115 Authorised by the Chief Parliamentary Counsel (b) a member of the staff of the Authority who has the qualifications and experience required for registration as a building surveyor under Part 11 that would authorise the person to carry out all work as a building surveyor. 83D Terms of appointment The instrument of appointment of a manager must specify— (a) the name of the manager; and (b) any remuneration payable to the manager; and (c) any other terms and conditions of the appointment; and (d) any reporting requirements to be observed by the manager. 83E Conditions on appointment of manager (1) An appointment of a manager is subject to— (a) any conditions imposed by the Authority; and (b) any conditions imposed by or under the regulations. (2) The conditions may limit the functions of the private building surveyor that the manager may carry out. (3) The Authority may impose conditions— (a) when the appointment is made; or (b) during the term of the appointment. (4) The Authority may revoke or vary conditions imposed under subsection (1)(a). -- 118 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 116 Authorised by the Chief Parliamentary Counsel (5) The Authority must give written notice to the manager of any condition imposed under subsection (1)(a) or varied or revoked under subsection (4). 83F Notice of appointment (1) The Authority must serve a notice of the appointment of a manager for a private building surveyor's business, without delay, on— (a) the private building surveyor; and (b) each council in whose municipal district the private building surveyor was carrying out work as a private building surveyor at the time of the appointment; and (c) any person whom the Authority reasonably believes should be served with the notice. (2) The notice must— (a) set out the information specified in the instrument of appointment; and (b) state that the private building surveyor may apply to VCAT under section 83R for review of the decision to appoint the manager; and (c) contain or be accompanied by any other information prescribed by the regulations. 83G Effect of service of notice of appointment After service on a private building surveyor of a notice of the appointment of a manager for the private building surveyor's business and until the appointment is terminated, the private building surveyor and any partner, -- 119 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 117 Authorised by the Chief Parliamentary Counsel officer, employee or agent of the private building surveyor must not participate in that business except under the direct supervision of the manager. Penalty: 60 penalty units. Subdivision 3—Management of business 83H Powers of manager (1) The manager of a private building surveyor's business may, subject to the terms and conditions of the manager's appointment— (a) carry out work on behalf of the existing clients of the business; and (b) accept engagement by, and carry out work on behalf of, new clients; and (c) complete any existing work of the business; and (d) incur any expenses that are reasonably related to the conduct of the business; and (e) do anything that is ancillary to the exercise of the powers referred to in paragraphs (a) to (d) as if the manager were the private building surveyor. (2) The manager of a private building surveyor's business may not exercise any of the powers conferred by this section in relation to the affairs of a client of the business unless the client's consent has been obtained to the exercise by the manager of those powers. -- 120 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 118 Authorised by the Chief Parliamentary Counsel 83I Powers of entry etc. (1) For the purpose of exercising the manager's powers under section 83H, the manager may exercise any or all of the following powers— (a) to enter and remain in or on any building or land used by the private building surveyor's business for or in connection with the conduct of that business, other than any building or land of a client for whom the private building surveyor is acting as a building surveyor; (b) to require the private building surveyor or any partner, officer, employee or agent of the private building surveyor or any other person who has or has had control of documents relating to clients of the private building surveyor to give the manager— (i) access to the documents the manager reasonably requires; and (ii) information relating to client matters the manager reasonably requires; (c) to operate equipment or facilities on the land or in the building, or to require any person on or in the land or building to operate equipment or facilities on the premises, for a purpose relevant to the management of the private building surveyor's business; (d) to take possession of any relevant document or thing; -- 121 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 119 Authorised by the Chief Parliamentary Counsel (e) to secure any relevant document or thing found in or on the building or land against interference, if the document or thing cannot be conveniently removed; (f) to take possession of any computer equipment or computer program reasonably required for a purpose relevant to the management of the private building surveyor's business. (2) A manager may enter and remain in or on a building or land under subsection (1)(a) only— (a) during normal business hours; or (b) during other hours with the consent of the occupier of the building or land. (3) A manager must not enter a building or land under subsection (1)(a) unless, before the entry, the manager has produced for inspection by the occupier— (a) the manager's notice of appointment; and (b) a form of identification that includes the manager's photograph and signature. (4) If a manager takes possession of— (a) a document, disk or tape or other thing that can be readily copied; or (b) a storage device the information in which can be readily copied— under this section the manager, on request by the occupier, the private building surveyor or a person from whom it was taken, must give a copy of the thing or information to that -- 122 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 120 Authorised by the Chief Parliamentary Counsel person as soon as practicable after taking possession of it. (5) If a manager takes possession of a document or other thing under this section and has not provided a copy of it under subsection (4), the manager must provide a receipt for the document or thing as soon as practicable after taking possession of it. (6) If a manager takes possession of a document or other thing under this section, the manager may keep it until it is no longer required for the carrying out of the manager's functions. (7) The manager must take all reasonable steps to return the document or other thing to the person entitled to it as soon as it is no longer required for the carrying out of the manager's functions. (8) Nothing in this section limits any other power the manager has as a private building surveyor under Division 2 of Part 13 or the building regulations. 83J Acts of manager taken to be acts of private building surveyor (1) An act done by the manager of a private building surveyor's business is, for the purpose of any proceedings or transaction that relies on that act, taken to have been done by the private building surveyor. (2) Nothing in this section subjects a private building surveyor or any partner, officer, employee or agent of a private building surveyor to any personal liability in relation to any act done by the manager of the private building surveyor's business. -- 123 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 121 Authorised by the Chief Parliamentary Counsel 83K Protection from liability A manager, or a person acting at the direction of the manager, is not liable for anything done or omitted to be done in good faith— (a) in carrying out a function of the manager under this Division; or (b) in the reasonable belief that the act or omission was in the carrying out of a function of the manager under this Division. 83L Payment of expenses of management (1) The Authority must pay to the manager out of the Building account so much of the expenses of the management of the private building surveyor's business as have not otherwise been paid to the manager out of the receipts of the business. (2) The Authority may recover an amount paid under this section in a court of competent jurisdiction as a debt owed by the private building surveyor. (3) Any amount recovered under this section must be paid into the Building account. 83M Business accounts The regulations may make provision for or with respect to— (a) the accounts that are to be kept with respect to the income accrued, and the expenses incurred, by the manager of a private building surveyor's business in connection with the conduct of that business; and -- 124 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 122 Authorised by the Chief Parliamentary Counsel (b) the purposes for which the money in any of those accounts may be expended. 83N Records and accounts of business under management The manager of a private building surveyor's business must maintain the records and accounts of the business— (a) separately from the records and accounts of the business before the manager was appointed; and (b) separately from the records and accounts of any other private building surveyor's business for which the manager is appointed as manager; and (c) separately from the records and accounts of the manager's own business; and (d) in the manner prescribed by the regulations. 83O Reports by manager (1) A manager must provide written reports in accordance with any reporting requirements to be observed by the manager as specified in the instrument of appointment. (2) If the instrument of appointment does not specify any reporting requirements, a manager must provide— (a) written reports as required from time to time by the Authority; and (b) a written report to the Authority at the termination of the appointment containing the information required by the Authority. -- 125 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 123 Authorised by the Chief Parliamentary Counsel (3) On the conclusion of the management of a private building surveyor's business, the manager must when giving the Authority the final report, lodge with the Authority all of the manager's records that relate to the management. 83P Deceased estates (1) It is the duty of the manager for a private building surveyor's business to co-operate with the legal personal representative of a deceased private building surveyor for the orderly winding up of the estate. (2) The manager is not, in the exercise or performance of powers and duties as manager, a legal personal representative of the deceased private building surveyor, but nothing in this subsection prevents the manager from exercising or performing powers or duties as a legal personal representative if otherwise appointed as representative. (3) Subject to subsections (1) and (2) and to the terms of the manager's appointment, if the manager was appointed before the death of the private building surveyor, the manager's appointment, powers and duties are not affected by the death. Subdivision 4—Termination of appointment 83Q Termination of manager's appointment (1) The appointment of a manager for a private building surveyor's business terminates in any of the following circumstances— (a) the term of the appointment comes to an end; -- 126 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 124 Authorised by the Chief Parliamentary Counsel (b) the appointment is set aside by VCAT under this Division; (c) the manager has completed the work of the private building surveyor for which the manager was appointed; (d) a determination of the Authority that the appointment be terminated has taken effect. (2) The Authority may determine in writing that the appointment be terminated immediately or with effect from a specified date. (3) If the appointment terminates, the former manager must, as soon as practicable after the termination, transfer and deliver all documents of the private building surveyor to— (a) another manager appointed for the private building surveyor's business; or (b) the private building surveyor, if another manager is not appointed for the private building surveyor's business. (4) The former manager need not transfer documents to the private building surveyor in accordance with subsection (3) unless the manager's expenses have been paid to the Authority. (5) The Authority must serve a written notice of the termination on all persons originally served with notice of the appointment. -- 127 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 125 Authorised by the Chief Parliamentary Counsel Subdivision 5—Applications to VCAT 83R Review of decision to appoint manager (1) The following persons may apply to VCAT for review of the decision of the Authority to appoint a manager for a private building surveyor's business or the conditions of that appointment— (a) the private building surveyor; (b) an employee of the private building surveyor; (c) any other person whose interests may be adversely affected by the appointment. (2) The application is to be made within 7 days after notice of the appointment of the manager is served under section 83F. (3) On an application under this section, VCAT may— (a) affirm the appointment; or (b) set aside the appointment; or (c) impose or vary any conditions of the appointment; or (d) make any other orders it considers appropriate. (4) Unless VCAT otherwise directs, an application under this section for review of a decision to appoint a manager of a private building surveyor's business does not stay the operation of the decision. -- 128 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 126 Authorised by the Chief Parliamentary Counsel 83S Directions of VCAT VCAT may, on application by— (a) a manager of a private building surveyor's business; or (b) the private building surveyor; or (c) any other person affected by the management by the manager of the private building surveyor's business— give directions in relation to any matter affecting that management or the manager's powers, duties or functions under this Division. Subdivision 6—General 83T Confidentiality (1) A manager must not disclose information obtained as a result of the manager's appointment except— (a) so far as is necessary for exercising powers or functions of the manager; or (b) as provided in subsection (2). Penalty: 60 penalty units. (2) A manager may disclose information to any of the following— (a) any court, tribunal or other person acting judicially; (b) the Authority or an employee of the Authority; (c) a council or a municipal building surveyor; -- 129 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 127 Authorised by the Chief Parliamentary Counsel (d) the private building surveyor or any partner, employee or agent of the private building surveyor; (e) a client or former client of the private building surveyor's business if the information relates to the client or former client; (f) another manager appointed in relation to the private building surveyor's business or a person employed by that other manager. 83U Offence to obstruct manager A person must not without reasonable excuse hinder, obstruct or delay a manager in the carrying out of the manager's functions under this Division. Penalty: 120 penalty units. 83V Owner may recover money paid to private building surveyor (1) This section applies if an owner of a building or land has appointed a private building surveyor and paid money to that private building surveyor for the private building surveyor to carry out certain functions under section 76 relating to that building or land. (2) The owner may recover all or part of the money paid to the private building surveyor in a court of competent jurisdiction as a debt due to the owner if— (a) the private building surveyor can no longer carry out the functions referred to in subsection (1) for any of the reasons listed in paragraphs (a) to (g) of section 83B(1); and -- 130 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 128 Authorised by the Chief Parliamentary Counsel (b) before becoming unable to carry out those functions, the private building surveyor had not completed those functions; and (c) the uncompleted functions are not to be completed by a manager appointed under section 83B because the owner has not consented to the completion of the work by a manager. Note Under section 83H(2), a client of a private building surveyor must consent to a manager completing the client's work.". 42 Directions and recommendations in relation to building surveyors For section 205M(4) of the Building Act 1993 substitute— "(4) Before giving a direction or making a recommendation under this section, the Authority must give the municipal building surveyor or private building surveyor concerned a written notice stating— (a) the Authority's intention; and (b) the period (being not less than 14 days after the giving of the notice) within which the building surveyor may make submissions to the Authority about the matter. (4A) The Authority may specify a period shorter than the 14 day period referred to in subsection (4)(b) in an emergency.". -- 131 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 129 Authorised by the Chief Parliamentary Counsel 43 Role of municipal building surveyor outside municipal district In section 216C(4)(a) of the Building Act 1993, after "78(1)," insert "78(1A),". Division 6—Regulation of building work 44 Section 16 substituted For section 16 of the Building Act 1993 substitute— "16 Offences relating to carrying out building work (1) A person must not carry out building work unless 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) A person must not carry out building work unless the work is carried out in accordance with this Act, the building regulations and the building permit issued in relation to that work. Penalty: 500 penalty units, in the case of a natural person; 2500 penalty units, in the case of a body corporate. (3) An owner of land must not permit building work to be carried out on that land unless— (a) a building permit in relation to the work has been issued and is in force under this Act; and -- 132 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 130 Authorised by the Chief Parliamentary Counsel (b) the work is carried out in accordance with this Act, the building regulations and the building permit issued in relation to that work. Penalty: 500 penalty units, in the case of a natural person; 2500 penalty units, in the case of a body corporate. (4) A building practitioner or an architect who is engaged to carry out building work must ensure that— (a) a building permit in relation to the work has been issued and is in force under this Act; and (b) the work is carried out in accordance with this Act, the building regulations and the building permit issued in relation to that work. Penalty: 500 penalty units, in the case of a natural person; 2500 penalty units, in the case of a body corporate. (5) Subsection (3) does not apply to an owner if the owner has engaged a building practitioner or architect to carry out the building work on that land. (6) Subsections (1), (2), (3) and (4) do not apply if the building work is exempted by or under this Act or the regulations.". 45 Costs of building work (1) In section 24A(3) of the Building Act 1993, for "$12 000" substitute "the prescribed amount". -- 133 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 131 Authorised by the Chief Parliamentary Counsel (2) After section 24A(3) of the Building Act 1993 insert— "(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.". 46 Further limitations on issue of building permit (1) For section 24A(1) and (2) of the Building Act 1993 substitute— "(1) The relevant building surveyor may consider an application for a building permit for building work (other than domestic building work) where the cost of the work (estimated under Subdivision 4 of Division 2 of Part 12) is more than the prescribed amount but must not issue the permit unless the relevant building surveyor is satisfied that— (a) the building work is to be carried out by a builder— (i) who is registered under Part 11; and (ii) who is to be specified as the builder in the building permit; and (b) each architect to be engaged in the building work is an insured architect. (2) The relevant building surveyor may consider an application for a building permit for domestic building work that is to be carried out under a major domestic building contract but must not issue the permit unless the relevant building surveyor is satisfied that— -- 134 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 132 Authorised by the Chief Parliamentary Counsel (a) the building work is to be carried out by a builder— (i) who is registered under Part 11 and whose registration authorises the carrying out of the building work; and (ii) who is covered by the required insurance in relation to the building work; and (iii) who is to be specified as the builder in the building permit; and (b) the name and registration number of the builder who is to carry out the building work specified in the major domestic building contract is identical to the name and registration number of the builder specified in a certificate of insurance from the insurer providing the required insurance in relation to the building work; and (c) each architect to be engaged in the building work is an insured architect; and (d) 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.". (2) In section 24A(3) of the Building Act 1993, for paragraph (a)(i) substitute— "(i) a builder who is registered under Part 11 and whose registration authorises the carrying out of that work; or". -- 135 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 133 Authorised by the Chief Parliamentary Counsel (3) For section 24A(4) of the Building Act 1993 substitute— "(4) In this section— prescribed amount means— (a) in relation to subsection (1)— (i) the amount prescribed by the regulations (if any); or (ii) if an amount is not prescribed, $5000; or (b) in relation to subsection (3)— (i) the amount prescribed by the regulations (if any); or (ii) if an amount is not prescribed, $16 000.". 47 New sections 30A and 30B inserted After section 30 of the Building Act 1993 insert— "30A Authority may approve checklist of documents to be certified (1) The Authority may approve a checklist of all documents required under section 30 to be given to the relevant council by the relevant building surveyor. (2) The Authority must publish the approved checklist on the Authority's website. -- 136 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 134 Authorised by the Chief Parliamentary Counsel 30B Relevant building surveyor must certify that documents given to council The relevant building surveyor must— (a) certify on the approved checklist that— (i) all documents required under section 30 to be given to the relevant council have been given to that council; and (ii) any lodgement fee required under section 30(2) has been paid. (b) give the certified checklist to the relevant council at the same time as the documents required under section 30. Penalty: 10 penalty units.". 48 New Division 1 heading inserted in Part 4 In Part 4 of the Building Act 1993, before section 33, insert the following heading— "Division 1—Inspections". 49 New Division 2 of Part 4 substituted for section 37 For section 37 of the Building Act 1993 substitute— "Division 2—Directions to fix building work 37 Definitions In this Division— authorised person means— (a) the Authority; or (b) a person authorised by the Authority under section 228(2); or -- 137 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 135 Authorised by the Chief Parliamentary Counsel (c) a performance auditor appointed under section 227A; builder in relation to building work, means the person who is specified as the builder in the building permit issued in relation to that building work; direction to fix building work means a direction to fix building work given under this Division; relevant owner, in relation to building work, means the owner of the building or land in or on which the building work is being carried out; relevant person means a person referred to in section 37C who can be, or has been, given a direction to fix building work. 37A Direction by relevant building surveyor to fix building work (1) This section applies if, after the inspection of building work, the relevant building surveyor believes on reasonable grounds that the building work fails to comply with this Act, the building regulations or the building permit issued in relation to the building work. (2) The relevant building surveyor must give a direction to fix the building work to a relevant person in accordance with this Division. (3) The relevant building surveyor may authorise a building surveyor or a building inspector whose registration under Part 11 authorises the inspection of that building work to give an oral direction to fix the building work to the relevant person on -- 138 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 136 Authorised by the Chief Parliamentary Counsel behalf of the relevant building surveyor in accordance with this Division. 37B Direction by authorised person to fix building work (1) This section applies if, after the inspection of building work, an authorised person believes on reasonable grounds that the building work fails to comply with this Act, the building regulations or the building permit issued in relation to the building work. (2) The authorised person may give a direction to fix the building work to a relevant person in accordance with this Division. (3) If, under this section, an authorised person gives a person a direction to to fix building work, any direction to fix that work given by or on behalf of a relevant building surveyor under section 37A ceases to have effect. 37C Method of giving directions A direction to fix building work may be given as— (a) an oral direction to either or both of the following persons— (i) the builder; (ii) the person who is apparently in charge of the site on which the building work is being carried out; or (b) a written direction to the builder. 37D Written direction if oral direction not complied with (1) This section applies if an oral direction to fix building work has been given under this Division. -- 139 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 137 Authorised by the Chief Parliamentary Counsel (2) The relevant building surveyor or authorised person must give the builder a written direction to fix building work if the relevant building surveyor or authorised person is not satisfied at the end of the prescribed period after the oral direction was given that the building work complies with this Act, the building regulations or the building permit issued in relation to the building work. (3) In this section— prescribed period means— (a) the period prescribed by the regulations (if any); or (b) if a period is not prescribed, 7 days. 37E Requirements of directions to fix building work A direction to fix building work may require the relevant person to do all or any of the following— (a) carry out work so that the building work complies wholly or substantially with this Act, the building regulations and the building permit issued in relation to the building work; (b) stop any further building work that may prevent the building work to which the direction applies from being adequately inspected, until the relevant building surveyor or authorised person is satisfied that a requirement under paragraph (a) has been complied with. -- 140 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 138 Authorised by the Chief Parliamentary Counsel 37F Written directions to fix building work (1) A written direction to fix building work must be given in a form (if any) approved by the Authority. (2) A written direction to fix building work must specify a period within which the direction must be complied with. (3) A written direction to fix building work must state the following— (a) that the builder has a right to appeal the decision to give the direction to the Building Appeals Board within a prescribed period; and (b) that the builder may ask the relevant building surveyor or authorised person to extend the period within which the direction must be complied with. 37G Extension of time to comply with direction (1) A builder who is subject to a written direction to fix building work may ask the relevant building surveyor or authorised person to extend the period for compliance with the direction. (2) A request under subsection (1) must be made before the end of the specified period for compliance with the direction. (3) On a request under subsection (1), the relevant building surveyor or authorised person may grant an extension of the period for compliance with the direction to fix building work if the relevant building surveyor or authorised person considers it appropriate to do so in the circumstances. -- 141 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 139 Authorised by the Chief Parliamentary Counsel (4) The relevant building surveyor or authorised person must give written notice of the extension to the builder. 37H Offences relating to compliance with direction (1) A builder must comply with a written direction to fix building work within the period for compliance specified in the direction. Penalty: 500 penalty units. (2) A builder to whom a direction to fix building work is given must not request or receive from the person for whom the building work was originally carried out (or any agent of that person) any payment for or in respect of any costs arising from anything done for the purpose of complying with the direction. Penalty: 50 penalty units. 37I Direction may be revoked (1) The relevant building surveyor or authorised person may revoke a direction to fix building work given to a relevant person if the relevant building surveyor or authorised person considers that the relevant person is not able to comply with the direction. (2) The relevant building surveyor or authorised person must give written notice of the revocation of a written direction to fix building work to the relevant person. 37J Relevant building surveyor or authorised person must give copies of directions and other notices to owner The relevant building surveyor or authorised person must give the following documents to the relevant owner and any other prescribed -- 142 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 140 Authorised by the Chief Parliamentary Counsel person in relation to a written direction to fix building work— (a) a copy of the direction; (b) a written notice of any extension of the period for compliance granted under section 37G; (c) a written notice of the revocation of the direction under section 37I. 37K Notice to owner and Authority of non-compliance with direction (1) If a builder fails to comply with a direction to fix building work within the required period for compliance, the relevant building surveyor or authorised person must give written notice of that failure to the Authority and the relevant owner. (2) The relevant building surveyor or authorised person must comply with subsection (1) within 7 days after the end of the required period for compliance.". 50 New Division 3 heading inserted in Part 4 In Part 4 of the Building Act 1993, before section 38, insert— "Division 3—Certificates of final inspection". 51 New section 118A inserted After section 118 of the Building Act 1993 insert— "118A Building notices and building orders to be last resort A municipal building surveyor or private building surveyor must not cause a building notice to be served on an owner or make a -- 143 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 141 Authorised by the Chief Parliamentary Counsel building order in relation to the carrying out of building work unless— (a) a direction to fix the building work was given under Division 2 of Part 4 and it is clear that the direction will not be complied with; or (b) the municipal building surveyor or private building surveyor is satisfied that it is either not possible or not appropriate to give a direction to fix the building work under that Division.". 52 Offence to work as building practitioner without required insurance After section 136(2) of the Building Act 1993 insert— "(3) Despite section 135(6), a builder referred to in subsection (2) is taken not to be covered by the required insurance if the name and registration number of that builder specified in the major domestic building contract is not identical to the name and registration number of the builder specified in the certificate of insurance from the insurer providing the required insurance in relation to the building work.". 53 New section 138A inserted After section 138 of the Building Act 1993 insert— "138A Directions to fix building work A person may appeal to the Building Appeals Board against a decision to give that person a written direction to fix building work under Division 2 of Part 4.". -- 144 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 142 Authorised by the Chief Parliamentary Counsel Division 7—Enforcement 54 New Division 2A inserted in Part 13 After Division 2 of Part 13 of the Building Act 1993 insert— "Division 2A—Remedies 234B Undertakings (1) The Authority may accept a written undertaking given by a person in connection with a matter in relation to which the Authority has a power or function under this Act. (2) The person may withdraw or vary an undertaking at any time, if the person has first obtained the consent of the Authority. (3) If the Authority considers that the person who gave the undertaking has failed to comply with any of its terms, the Authority may apply to a court for an order under subsection (4). (4) If a court is satisfied that the person has failed to comply with a term of the undertaking, the court may make all or any of the following orders— (a) an order directing the person to comply with that term of the undertaking; (b) an order directing the person to carry out building work or protection work; (c) an order directing the person to pay to the State an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the failure to comply; -- 145 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 143 Authorised by the Chief Parliamentary Counsel (d) any order that the court considers appropriate directing the person to compensate any other person who has suffered loss, injury or damage as a result of the failure to comply; (e) any other order that the court considers appropriate. (5) If a body corporate is found to have failed to comply with an undertaking, each officer of the body corporate is taken to have so failed to comply with the undertaking if the officer knowingly authorised or permitted the failure and the court may, against the officer, make all or any of the orders set out in subsection (4) that the court thinks appropriate. 234C Copy of undertaking The Authority must give a copy of an undertaking under section 234B to the person who made the undertaking. 234D Register of undertakings (1) The Authority must— (a) maintain a register of undertakings; and (b) register each undertaking given under section 234B in the register of undertakings. (2) The register of undertakings must include the following— (a) the name and address of the person who gave the undertaking; (b) the date of the undertaking; (c) a copy of the undertaking. -- 146 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 144 Authorised by the Chief Parliamentary Counsel (3) The register of undertakings may be inspected by any person at any reasonable time, without charge.". Division 8—General 55 Section 199 substituted For section 199 of the Building Act 1993 substitute— "199 Delegation by the Authority (1) The Authority may by instrument delegate to any person any of its functions except a function under section 205M. (2) The Authority may by instrument delegate a function under section 205M to the chief executive officer of the Authority.". 56 Statute law revision In section 146(2) of the Building Act 1993 for ", 139, 174A or 178" substitute "or 139". Division 9—Transitional provisions 57 New section 273 inserted After section 272 of the Building Act 1993 insert— "273 Transitional and savings provisions— Building Legislation Amendment (Consumer Protection) Act 2016 Schedule 8 has effect.". -- 147 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 145 Authorised by the Chief Parliamentary Counsel 58 New Schedule 8 inserted After Schedule 7 to the Building Act 1993 insert— "Schedule 8—Transitional and savings provisions relating to the Building Legislation Amendment (Consumer Protection) Act 2016 Section 273 Part 1—Preliminary 1 Definitions In this Schedule— amending Act means the Building Legislation Amendment (Consumer Protection) Act 2016; 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— (a) in relation to Part 2, the day on which Division 2 of Part 3 of the Building Legislation Amendment (Consumer Protection) Act 2016 comes into operation; and -- 148 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 146 Authorised by the Chief Parliamentary Counsel (b) in relation to Part 3, the day on which section 22 of the Building Legislation Amendment (Consumer Protection) Act 2016 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 Board 3 Abolition of Building Practitioners Board (1) On the relevant commencement day— (a) the Building Practitioners Board is abolished and its members go out of office; and (b) any subcommittee of the Building Practitioners Board is abolished and its members go out of office. (2) Subclause (1) does not affect any other provisions of this Part— (a) dealing with proceedings before the Building Practitioners Board; or (b) providing for the Building Practitioners Board to continue for certain purposes. -- 149 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 147 Authorised by the Chief Parliamentary Counsel (3) If, under this Part, the Building Practitioners Board continues for certain purposes, the old provisions relating to the membership and procedure of the Board continue to apply for those purposes. 4 Proceedings—Building Practitioners Board (1) If, before the relevant commencement day, the Building Practitioners Board had commenced an inquiry into the conduct of a building practitioner but the Board had not determined the inquiry, the Board may continue and determine the inquiry in accordance with the old provisions. (2) A determination of the Building Practitioners Board referred to in subclause (1) is taken— (a) in the case of a decision under section 179 of the old provisions, to be a decision of the Authority under section 182E of the new provisions; or (b) in the case of a decision under section 180 of the old provisions, to be a decision of the Authority under section 181 of the new provisions. (3) An application for a review that has been made under section 182A of the old provisions but not determined before the relevant commencement day may be continued and completed in accordance with the old provisions. (4) If the time within which an application for review could be made under section 182A of the old provisions had not expired before the relevant commencement day, the application may be made and dealt with in accordance with the old provisions. -- 150 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 148 Authorised by the Chief Parliamentary Counsel (5) Any costs incurred by the Authority in administering this Part, including the remuneration and allowances of members of the Building Practitioners Board continuing and completing an inquiry or proceedings under this Part, must be paid out of the Building account. 5 Proceedings against the members of the Building Practitioners Board On the relevant commencement day, the Authority is substituted for the members of the Building Practitioners Board as a party in any proceedings against the Board or its members in their capacity as such. 6 Decisions and actions of Building Practitioners Board On the relevant commencement day, all decisions and actions taken by the Building Practitioners Board under this Act before the relevant commencement day are taken to be decisions and actions taken by the Authority in relation to any period on or after the relevant commencement day. 7 Certificates of consent Without limiting clause 6, a certificate of consent issued by the Building Practitioners Board under Division 3A of Part 3 and existing immediately before the relevant commencement day is taken on and after that day to be a certificate of consent issued by the Authority under that Division. 8 Register of certificates of consent The register of certificates of consent kept under section 25H immediately before the relevant commencement day is taken on and after that day to form part of the register of -- 151 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 149 Authorised by the Chief Parliamentary Counsel certificates of consent required to be kept by the Authority under that section. 9 References to Building Practitioners Board On and from the relevant commencement day, in any Act (other than this Act or an old provision continued by this Part) or in any instrument made under any Act or in any other document of any kind, a reference to the Building Practitioners Board is taken to be a reference to the Authority in relation to any period on or after that day unless a contrary intention appears. Part 3—Building practitioners 10 Expiry of existing registration (1) This clause applies to a person who was registered under Part 11 as a building practitioner immediately before the relevant commencement day. (2) The registration of the registered building practitioner (unless cancelled sooner) expires on the anniversary of that registration that occurs in the financial year set out in column 2 of the Table opposite the class of practitioner in column 1 of the Table to which the practitioner belongs. (3) The registered building practitioner may apply under Part 11 for the renewal of the registration and for that purpose the practitioner is taken to hold the prescribed qualifications for the registration. -- 152 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 150 Authorised by the Chief Parliamentary Counsel (4) If the registered building practitioner was taken by clause 19 of Schedule 4 to be registered, a reference in this clause to the anniversary of the registration of the practitioner is taken to be a reference to the anniversary of the date of issue of the building practitioner's certificate under clause 19(6) of Schedule 4 unless the registration currently held by the building practitioner was granted after the date of issue of that certificate. Class of building practitioner Financial year Practitioners first registered in a year ending in zero or 5 Financial year commencing 1 July 2017 Practitioners first registered in a year ending in 1 or 6 Financial year commencing 1 July 2018 Practitioners first registered in a year ending in 2 or 7 Financial year commencing 1 July 2019 Practitioners first registered in a year ending in 3 or 8 Financial year commencing 1 July 2020 Practitioners first registered in a year ending in 4 or 9 Financial year commencing 1 July 2021 Part 4—Building surveyors 11 Circumstances in which private building surveyor may not act (1) The amendments made to section 79(1) by section 39(1) of the amending Act apply only in relation to a matter referred to in section 79(1)(a) to (d) that occurs on or after the commencement of that section 39. (2) The amendment made to section 79 by section 39(2) of the amending Act apply only in relation to a conflict of interest that arises on or after the commencement of that section 39. -- 153 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 151 Authorised by the Chief Parliamentary Counsel 12 Recovery of money from private building surveyor Section 83V as inserted by section 41 of the amending Act applies in relation to money paid to a private building surveyor appointed under Part 6 before, on or after the commencement of that section 41. 13 Further limitations on issue of building permit (1) The amendments made to section 24A by section 45 of the amending Act apply only in relation to an application for a building permit accepted by the relevant building surveyor on or after the commencement of that section 45. (2) The amendments made to section 24A by section 46 of the amending Act apply only in relation to an application for a building permit accepted by the relevant building surveyor on or after the commencement of that section 46. 14 Certifying of documents given to relevant council Section 30B as inserted by section 47 of the amending Act applies only in relation to a building permit issued by the relevant building surveyor on or after the commencement of that section 47. 15 Directions under section 37 Section 37 as in force immediately before the commencement of section 49 of the amending Act continues to apply in relation to any direction given before the commencement of that section 49. -- 154 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 152 Authorised by the Chief Parliamentary Counsel Part 5—Dispute resolution 16 Reports of inspectors Despite the repeal of section 241B by section 68 of the amending Act, section 241B continues to apply to any report of an inspector given to the Authority before the commencement of that section 68. Part 6—General 17 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 2017. (5) This clause is repealed on 1 July 2019.". -- 155 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 153 Authorised by the Chief Parliamentary Counsel Division 10—Amendments relating to dispute resolution 59 Definitions of dispute resolution order and domestic building work dispute In section 3(1) of the Building Act 1993, insert the following definitions— "dispute resolution order has the same meaning as it has in the Domestic Building Contracts Act 1995; domestic building work dispute has the same meaning as it has in the Domestic Building Contracts Act 1995;". 60 New section 37HA inserted After section 37H of the Building Act 1993 insert— "37HA Operation of direction may be stayed The relevant building surveyor or the authorised person may stay the operation of a direction to fix building work if— (a) the building work is the subject of a domestic building work dispute; and (b) the domestic building work dispute has been accepted for conciliation under Part 4 of the Domestic Building Contracts Act 1995.". 61 Directions may be revoked For section 37I(1) of the Building Act 1993 substitute— "(1) The relevant building surveyor or authorised person may revoke a direction to fix building work given to the relevant person if— -- 156 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 154 Authorised by the Chief Parliamentary Counsel (a) the relevant building surveyor or authorised person considers that the relevant person is not able to comply with the direction; or (b) the building work is the subject of a domestic building work dispute and— (i) a dispute resolution order has been issued in relation to the building work; or (ii) the dispute has been resolved by conciliation under Part 4 of the Domestic Building Contracts Act 1995; or (iii) the dispute has been determined by VCAT under the Domestic Building Contracts Act 1995.". 62 Requirement to give copies of directions In section 37J(c) of the Building Act 1993 after "written notice" insert "of the stay of the direction under section 37HA or". 63 Grounds for disciplinary action (1) After section 179(1)(d) of the Building Act 1993 insert— "(da) the practitioner has failed to comply with a dispute resolution order under the Domestic Building Contracts Act 1995; or". (2) After section 179(2) of the Building Act 1993 insert— "(3) Without limiting its powers to consider information, the Authority may have regard to a report of an assessor under section 48R of the Domestic Building Contracts Act 1995 where relevant to any matter being dealt with under this Division.". -- 157 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 155 Authorised by the Chief Parliamentary Counsel 64 Applying for internal review (1) In section 185(3) of the Building Act 1993, for "subsection (4)" substitute "subsections (3A) and (4)". (2) After section 185(3) of the Building Act 1993 insert— "(3A) An application for an internal review of a reviewable decision imposed for a failure by a builder to comply with a dispute resolution order may be made at any time before any disciplinary action imposed by the reviewable decision ceases to have effect.". 65 Internal review (1) In section 185B(1) of the Building Act 1993 for "The reviewer must" substitute "Subject to subsection (1A), the reviewer must". (2) After section 185B(1) of the Building Act 1993 insert— "(1A) In the case of an application referred to in section 185(3A), the reviewer may have regard to whether the affected person has done all or any of the following— (a) rectified or completed, or arranged for the rectification or completion of, the work specified in the dispute resolution order; (b) paid compensation to the building owner, or entered into an agreement to pay compensation to the building owner or satisfied any other arrangement agreed with the building owner; -- 158 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 156 Authorised by the Chief Parliamentary Counsel (c) reimbursed an insurer, or entered into an agreement to reimburse an insurer, for the costs (including administrative and legal costs) of the rectification or completion work paid for by the insurer or satisfied any other arrangement agreed with the insurer.". 66 Application for review by VCAT of reviewable decision (1) In section 186(4) of the Building Act 1993 for "An application" substitute "Subject to subsection (5), an application". (2) After section 186(4) of the Building Act 1993 insert— "(5) An application for review of a reviewable decision imposed for a failure to comply with a dispute resolution order may be made at any time before any disciplinary action imposed by the reviewable decision ceases to have effect.". 67 Proceedings and decision After section 187(1) of the Building Act 1993 insert— "(1A) In considering an application for review of a reviewable decision or review decision imposed for a failure to comply with a dispute resolution order, VCAT may have regard to the matters set out in section 185B(1A).". 68 Repeal of section 241B Section 241B of the Building Act 1993 is repealed. -- 159 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 157 Authorised by the Chief Parliamentary Counsel Division 11—Amendments to Victorian Civil and Administrative Tribunal Act 1998 69 New Part 2B inserted in Schedule 1 After Part 2AB of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 insert— "Part 2B—Building Act 1993 4K Order to stay operation of decision Despite section 50(4)(b), the Tribunal must give the Victorian Building Authority an opportunity to be heard if the order relates to a decision by the Authority under section 180A of the Building Act 1993 to immediately suspend the registration of a building practitioner. 4L Costs Despite section 109, the Tribunal may award costs against a building practitioner in a proceeding under Subdivision 3 of Division 4 of Part 11 of the Building Act 1993 if the building practitioner relied on evidence that was available but not provided to the Victorian Building Authority under that Part.". 70 Amendments to Part 6 of Schedule 1 (1) In clause 11K of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, the definition of Building Practitioners Board is repealed. -- 160 of 163 -- Part 3—Regulation of building work and building practitioners Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 158 Authorised by the Chief Parliamentary Counsel (2) In clause 12 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998— (a) for the heading to that clause substitute "Referral to Director or Victorian Building Authority"; (b) in subclause (1) for ", the Victorian Building Authority or the Building Practitioners Board" substitute "or the Victorian Building Authority"; (c) in subclause (2) for ", Authority or Board" (where twice occurring) substitute "or the Authority". Division 12—Amendments to Domestic Building Contracts Act 1995 71 General contents etc. of a contract (1) After section 31(1)(e) of the Domestic Building Contracts Act 1995 insert— "(ea) states the name and address of the builder who is to carry out the work if the builder is not a party to the contract; and". (2) In section 31(1)(f)(i) of the Domestic Building Contracts Act 1995, after "builder" insert "who is to carry out the work". 72 Domestic Builders Fund After section 124(3)(c) of the Domestic Building Contracts Act 1995 insert— "(ca) amounts determined by the Director for the purpose of providing advocacy services in relation to domestic building contracts and domestic building disputes; and". -- 161 of 163 -- Part 4—Repeal of amending Act Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 159 Authorised by the Chief Parliamentary Counsel Part 4—Repeal of amending Act 73 Repeal of amending Act This Act is repealed on 1 July 2018. 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). ═══════════════ -- 162 of 163 -- Endnotes Building Legislation Amendment (Consumer Protection) Act 2016 No. 15 of 2016 160 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: 10 December 2015 Legislative Council: 11 February 2016 The long title for the Bill for this Act was "A Bill for an Act to amend the Domestic Building Contracts Act 1995 and the Building Act 1993 to enhance consumer protection in relation to domestic building work and to otherwise improve the operation of those Acts, to make consequential amendments to the Victorian Civil and Administrative Tribunal Act 1998 and for other purposes." -- 163 of 163 --