Thursday, 9 February 2023

Building and Planning Legislation Amendment Bill 2022

Second reading

Debate resumed on motion of Sonya Kilkenny:

That this bill be now read a second time.

David HODGETT (Croydon) (12:35): It is a pleasure to rise and lead the debate on the Building and Planning Legislation Amendment Bill 2022. The purpose of the proposed bill is to deliver several legislative changes proposed in the lapsed Building, Planning and Heritage Legislation Amendment (Administration and Other Matters) Bill 2022. The amendments will acquit a 2018 government election commitment and aim to improve the clarity and operation of the building and planning systems. While we are not opposing the bill, we actually believe it can be improved, and as such, I move:

That all the words after ‘That’ be omitted and replaced with the words:

‘this house refuses to read this bill a second time until the minister – (a) consults with stakeholders including the Australian Institute of Architects about possible time delays incurred by the board in examining proof of insurance for architects already registered in Victoria; (b) provides clarity about the range of criminal sanctions that would be considered in assessing registration applications; and (c) consults with green wedge advocacy groups and relevant local government areas on steps to further protect green wedge areas.’

I will come back to debate and argue for support for the reasoned amendment, but first I want to outline the purpose of the bill’s main provisions and some of the areas of concern that we have and then argue the case for that reasoned amendment. The purpose of the bill of course can be found in the copy of the bill. The main purpose, I should say, is that it proposes to amend the Building Act 1993, the Architects Act 1991, the Surveying Act 2004 and the Planning and Environment Act 1987. In relation to the Building Act 1993:

in relation to the automatic mutual recognition of building practitioners, building employees and plumbers who are registered or licensed in other jurisdictions; and

to make miscellaneous amendments …

In relation to the Architects Act 1991:

in relation to the automatic mutual recognition of architects who are registered or licensed in other jurisdictions; and

to make miscellaneous amendments …

In relation to the Surveying Act 2004:

to amend the Surveying Act 2004 in relation to the automatic mutual recognition of surveyors who are registered or licensed in other jurisdictions …

And finally:

to amend the Planning and Environment Act 1987 in relation to the protection of metropolitan green wedges and distinctive area landscapes.

There will be plenty on our side of the house that want to talk about green wedge protections there, and you will hear that through a number of contributions. I know the member for Nepean is keen to jump the speaking list to make a contribution on that, so I will be interested to listen to his contribution.

In terms of background, the bill seeks to clear a 2018 government election commitment and aims to improve the clarity and operation of the building and planning systems. The bill actually replaces a previous bill that expired at the table in the Legislative Council last Parliament. In the previous bill the government were proposing changes to the architects accreditation board, removing accredited architects from the board. The government has removed the changes to the accreditation board in this bill, so we are not dealing with those matters this time around.

In terms of the main provisions, the bill is about providing greater protection for metropolitan green wedge land by introducing objectives for green wedge land and a requirement for councils to prepare and review green wedge management plans. The bill will also provide the mechanism through which this can be implemented. I will come back to speak a little bit about each of these points. As I said a moment ago, our support for green wedges and the protection of those is solid and remains so. The bill seeks to streamline the process for endorsing a statement of planning policy for distinctive area landscape. The bill will amend the Building Act 1993, the Architects Act 1991 and the Surveying Act 2004 to support the implementation of that national automatic mutual recognition scheme in Victoria. This will protect consumers by ensuring practitioners working under automatic mutual recognition are covered by insurance required under Victorian building laws and by making the registration details of practitioners working under AMR available to the public. Finally, the bill will amend the Building Act to provide certainty regarding the Victorian Building Authority’s continuing power to issue restricted plumbing licences for private plumbing work, which will allow the VBA to continue to issue these licences in multiple work classes and minimise any potential for unlawful plumbing work.

I will talk about each of those points, but at the outset I might take the opportunity to say that when a bill is introduced to this place we know we have stakeholder engagement and we go through the minister’s office to seek a bill briefing. I did want to put on the record my thanks to Aidan Wright from the minister’s office and to Andrew Grear, Ada Young, Steven Elliott and Nick Mann from the Department of Transport and Planning, who were able to give us a thorough bill briefing and answer the questions that I and my colleagues had or that indeed stakeholders asked us to put forward. So I do put on record my thanks to Aidan Wright and the departmental reps that were able to do that and thank them for their time.

There are two building elements and two planning elements in the bill. To go through the building elements first, one is to do with automatic mutual recognition. The bill makes it clear in Victorian legislation that the VBA as a regulator can check that the practitioners coming here from interstate have the right insurance. They also need to go on a register so that Victorian consumers know what kinds of activities the interstate practitioners can do. There are no additional requirements for those from interstate; it is just making what is required by Victorian practitioners as standard. There were some concerns raised about our border communities in particular where you might have someone in, say, the member for Benambra’s electorate who is registered in New South Wales coming across and doing works in Victoria around fees and activities there, and I will come back to that.

The second component is the restricted plumbing licences. There are two categories of plumbing licences. At the moment you can be a licensed plumber or a registered plumber, and only licensed plumbers can issue a compliance certificate for works over $750. The restricted licences are for people who have registration, and they allow them to work on their own homes or on family members’ homes. So it is recognising that if you are a plumber and you are doing work on your own home or on a family member’s home for no fee, you can still issue a compliance certificate. If you are a plumber, you are not going to call out a licensed plumber to come and do works on your own house, so this recognises that if you are a plumber and you are doing work on your home you can still issue a compliance certificate. The reason that is important is because if you sell your home the new owner will want to have the certificate to say that the work was lawfully compliant and has insurance to cover that work. I did reach out to the plumbers union, and my understanding is they had no issues or concerns with that change.

In relation to the two planning components of the amendment, the first one is the protection of the green wedge and (a) it embeds the objectives of the green wedge into the Planning and Environment Act 1987 – for example, biodiversity, open space, waterways, traditional owner values; all important things – and (b) it requires LGAs to prepare green wedge management plans every 10 years. Now, local governments already prepare green wedge plans, or most of them do, but when we asked about this the department reps explained to us that this makes it a legislative requirement, so that is the change proposed here. The second planning component is in relation to areas declared distinctive areas and landscapes, and I think from memory there are four declared at the moment: Macedon Ranges, Bellarine Peninsula, Surf Coast and Bass Coast. This does two things: it allows a statement of planning policy, and also a statement of planning policy is needed and is required to be endorsed by all responsible public entities in the area. So that is the change that is coming in here. The time limit for those entities to consider it is 28 days. As I understand it, there is no time limit at the moment, and all those responsible entities will have 28 days to do that.

The second part – part (b) – allows the minister to exempt responsible public entities from having to endorse a statement of planning policy. The example that was given to us at the bill briefing was that you might have a committee of management for a mechanics hall in a small township in regional Victoria or, for example, in Bass Coast. If you have got a number of responsible authorities to sign off in the 28-day period, it might not make sense for that committee to have to sign off on a very broad statement of planning policy, so this gives the minister the power to exempt those from that. It basically ensures that common sense prevails. We do not have a problem with that. We think that could work well, and I am sure if some of those committees did want to make a statement, they would not be discouraged from doing so. That was the example there and, as I said, any changes to the architects board in the previous bill have been taken out, so there was no need for concern there.

There were a number of areas of concern, however, or points raised with us. When we get a bill before Christmas we go out to the stakeholders, and the beauty of that is you have got more time to do the stakeholder consultations. The challenge is of course that a lot of organisations and people are away at that time of year, so you do want to give people the opportunity to make comment or provide feedback on a bill that might impact them or their association. I am pleased to say we did get a bit of feedback from a number of organisations, either supporting or not opposing or raising some concerns, so that process works very well.

The Australian Institute of Architects wrote to us. I will be quoting some of the material from the letter. As I understand it, they have written to the minister as well. They are not about surprises or hiding anything, and I think they have sent the same material to the minister and to us, so there will be no surprises in the matters I am raising. We are really seeking to work cooperatively with the minister to get those changes made and support for the reasoned amendment. I will be interested in the department and the minister’s response to those concerns. The Australian Institute of Architects generally support the bill. However, the institute identified two key areas and proposed amendments. In relation to additional fees, the letter states:

Identified risk: Victorian architects may be levied with a second annual fee that is additional to their annual registration renewal.

The second issue relates to maintaining information about criminal sanctions on the register and web publication. The institute identified that:

… There is a risk of a disproportionate measure of making publicly available specified information about criminal sanctions and offending history of an architect for no less than five years that may not be relevant to the public interest.

That is a valid point, and I will come back to talking a little bit more about that.

My colleague in the other place Moira Deeming put forward some suggestions through her contacts in local government and her expertise or knowledge from her own experience around green wedges. She put forward some suggestions in relation to further protections to green wedge zones. If time permits, I will certainly be talking about that, but the green wedge protections are in the reasoned amendment. As I foreshadowed, I think a number of my colleagues on this side of the house will be making comments on the need for further protection of green wedge zones in their contributions to the debate. But I will certainly come back to that.

Finally, I again put on record that we support the requirement to prepare green wedge management plans, and most councils do have a green wedge management plan now. However, it was brought to our attention, I think by one of the institutes – the planning institute it might have been – that whilst there is support for the preparation of green wedge management plans, it generally is taking councils lots of time and resources to prepare green wedge management plans due to the extensive consultation required. Therefore, the stakeholder was querying – or we query – whether the state government will provide support or resourcing for this work to be undertaken for councils that have not got one yet or that need to update theirs. There are few of us in this place who have spent a little bit of time in local government. We know the work that is required and the resources that go into a piece of work like that, so that would be something that the minister might like to take on board in terms of providing resources or support for councils to undertake that work.

With the time remaining, I did want to turn my attention to the Australian Institute of Architects and their letter, their concerns that have been raised with me, and put them on record, and as I said, I think the minister has got a copy of these as well. It says:

The Institute would first like to indicate –

As I said, they emphasise that they:

… broadly support the Bill and have advocated for harmonisation of regulation and accreditation of architects across jurisdictions for many years. The Bill will assist architects (and others in the construction sector) to more easily work in multiple jurisdictions, and ensure appropriate regulation and safeguards without unwarranted duplication of compliance requirements.

So they are all for that.

While we generally support the Bill, there are two proposed amendments we believe require …consultation with the profession …

As I said, I will outline the two key issues that the institute raised. The first issue was in relation to additional annual fees, and I will refer to the letter extensively here because it is quite detailed:

Provisions of the Bill: Clause 23 of the Bill introduces a new Section 9A “Proof of required insurance for persons intending to rely on automatic deemed 5 registration” New subsection 9A(3) provides that,

“(3) The person must ensure that the written proof is accompanied by the prescribed fee for the examination of the written proof by the Board.”

Clause 27 of the bill creates a new subsection 15A(2) in the Architects Act which follows on from the existing Section 15A “Proof of required insurance”. New subsection 15A(2) specifies that,

(2) An architect must ensure that the written proof is accompanied by the prescribed fee for the examination of the written proof by the Board.

Section 9 of the Act pertains to application for registration and the new Section 9A specifically pertains to those persons seeking to practice under automatic mutual recognition (AMR) arrangements for the first time.

Section 15 of the Act pertains to annual fees only ( … annual renewal)

The new subsection 15(A)(2) does not distinguish whether the annual recurring fee for examination of written proof of insurance applies only to architects who pay their annual registration in another state and are seeking to practice in Victoria under AMR or if it applies to all Architects – including those already registered in Victoria.

So the identified risk is that:

… Victorian architects may be levied with a second annual fee that is additional to their annual registration renewal.

We are just seeking clarification on that or an adoption of support for our reasoned amendment to rectify that. Further:

The Institute recommends that a recurring annual fee for architects from another state to review their written proof of holding required insurances is justified to ensure the Board can adequately execute its functions without unnecessary time delays.

The Institute recommends that as new subsection 15(A)(2) is unclear as to its application then,

clause 27 the Bill should be amended to ensure the new subsection 15A(2) leaves no doubt that it only applies…those Architects who are registered in another state, or

if the Clause 27 is intended to levy a second annual fee on Victorian architects, for reviewing submitted proof of insurance the Institute opposes new subsection 15(A)(2). The reason is that submitting proof of insurance is not a new measure and has been a long-standing requirement. There has been no business case provided to justify an additional annual charge on Victorian architects.

So they are the changes we would be advocating for on behalf of the institute in relation to additional annual fees.

The second issue is to do with maintaining information about criminal sanctions on the register and web publication. Again, it is very technical, so I will outline it in detail and then argue for the change:

Provisions of the Bill: Clause 28 of the bill introduces new subsection 16(2).

“(2) The Register may include details of –

(a) any criminal sanction imposed on an architect; and

(b) any disciplinary sanction imposed on an architect.”.

Clause 29 of the Bill among other new provisions includes subsections 16A(1)–(3) as follows:

“16A Time for inclusion of information in the Register of Architects

If the regulations require any details specified in section 16(2) to be included in the Register of Architects, the Board must record that information in the Register as soon as practicable after the prescribed period after the criminal sanction or disciplinary sanction is imposed.

information about a disciplinary sanction is to remain on the Register of Architects for 5 years after the sanction is imposed or ceases to have effect, whichever is the later.

information about a criminal sanction to remain on the Register of Architects for 5 years after the sanction is imposed or eases to have effect –

I think that should be ‘ceases’ to have effect –

whichever is the later.”

Clause 29 also provides for new section 16C:

16C Publication of information on Register of Architects

(1) The Board must publish on its website the information on the Register of Architects that is required by the regulations to be published.

(2) The Board may publish on its website the information on the Register of Architects that is permitted by the regulations to be published.

The institute states:

The Minister’s first-reading speech noted the information as necessary to enable the operation of AMR.

“Criminal sanction” has no definition in the Bill, the Architects Act 1991, the Architects Regulations 2015, the Interpretation of Legislation Act 1984, the Crimes Act 1958, the Summary Offences Act 1966 nor the Spent Convictions Act 2001.

Therefore what the institute recommends is:

… that a working definition is provided in the Architects Act 1991 for the term “criminal sanctions” that specifies the applicable types of offending for which “criminal sanctions” have been imposed. The applicable types of offending should accord with those already given in subsections 10A(a), 10A(b) and 36A(1)(d).of the act

The Institute recommends the working definition for “criminal sanctions” also distinguishes between the applicable types of sanction such as fines, community service orders, wholly or partly suspended sentences or served periods of incarceration.

The other identified risk that the institute put forward was the risk of a disproportionate measure of making publicly available specified information about criminal sanctions and offending history for an architect for no less than five years that may not be relevant or in the public interest. They gave an example:

This raises a questions as to whether, as an example, an architect with a dangerous driving conviction leading to death or serious injury under the Crimes Act presents a risk to consumers and institutional clients? Similarly, do certain summary offences under the Summar Offences Act pertaining to disorderly conduct or posting bills present a public interest risk?

Just to clarify there: the institute is certainly not suggesting that dangerous driving is not a serious matter. They are just basically picking an example of a criminal conviction and asking whether that would be relevant to an architect performing their duties, which I think is a valid point. There are probably better examples you could put forward, but that is the one that they identified and put forward. Yes, they have done wrong; yes, they have been tried and found guilty and have a criminal record, but it is about whether that is going to affect them carrying out their or their institutional clients’ duties. As such:

The Institute also recommends that current Section 10A(a) and 36A(1)(d) offences should be broadened to include serious sexual offences, offences relating to child abuse material etc. as per the Crimes Act 1958 that are relevant to the public interest.

As outlined, I think these matters that have been raised are quite detailed, quite technical and quite thorough. There has been a lot of thought and obviously work put into the submission from the Australian Institute of Architects. The minister does have a copy of it. They raised this with us, and I gave an undertaking to put it on record here. I thank the institute for raising this. I think they are reasonable amendments. With credit to the institute, they have not just raised concerns but they have made solid recommendations for a sensible way forward.

I had better finish off; hence I have moved the reasoned amendment. I know the government has the numbers to push this through the house, but I firmly believe the government is prepared to listen. This bill will be improved and be a better bill if it satisfies the concerns raised.

Sitting suspended 1:00 pm until 2:01 pm.

Business interrupted under standing orders.