Wednesday, 18 March 2026

 Gabrielle WILLIAMS (Dandenong – Minister for Transport Infrastructure, Minister for Public and Active Transport) (10:45): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Building and Plumbing Administration and Enforcement Bill 2026:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Building and Plumbing Administration and Enforcement Bill 2026 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I have this opinion for the reasons outlined in this statement.

Overview of the Bill

The primary features of the legislative scheme provided for in this Bill are:

•   to reform and improve the administration and regulation of the building and plumbing industries;

•   to strengthen the enforcement of building and plumbing standards and support effective disciplinary processes for registered building practitioners, licenced building employees, endorsed building engineers and licensed and registered plumbers;

•   to establish the Building and Plumbing Commission and associated regulatory entities;

•   to establish the Building Appeals Tribunal;

•   to impose levies in relation to work requiring a building permit;

•   to make consequential and related amendments to the Building Act 1993 (Building Act); and

•   to make consequential and other amendments to related Acts.

The Bill provides that the objective of the building system, which includes the building and plumbing industries and the building system regulators, is to promote and protect the health and safety of building occupants and the public. This objective is to be achieved through design, construction, installation, commissioning, testing and maintenance work that is consistent with building and plumbing standards and building legislation and is overseen by robust building system regulators (clause 6). A person, in performing a function or exercising a power under building legislation, must have regard to this objective, as well as any relevant entity-specific objective (clause 11).

The importance of the Bill

The new legislative scheme established by this Bill is designed to strengthen Victoria’s building regulatory system with the aim of producing a safer, more transparent and more accountable building system in Victoria. It establishes a new administrative framework that introduces a stronger, integrated and more efficient building regulator, while also enhancing the regulatory powers that underpin the system.

Establishment of an overarching legislative framework

A key feature of the Bill is the establishment of an overarching legislative framework. By consolidating and unifying what are currently discrete pieces of building legislation, the Bill aims to simplify primary legislation for the building and plumbing sectors and improve efficiency across the regulatory landscape.

The Bill will deliver a coordinated and effective system for monitoring and enforcing Victoria’s building legislation, ensuring clear, end-to-end accountability for building and plumbing work. This integrated approach is intended to support compliance, lift professional standards, and improve outcomes for consumers and industry participants.

Establishment of the Building and Plumbing Commission

The Bill creates the Building and Plumbing Commission (BPC). The BPC will be an integrated building regulator designed to be both efficient and trusted. The BPC is expected to play a foundational role in supporting the Government’s housing delivery targets and rebuilding consumer confidence in Victoria’s construction sector. This follows the Government’s October 2024 announcement that the Victorian Building Authority (VBA) would be replaced by the BPC, which will also become the sole insurer for the domestic building sector for buildings three storeys and under. The BPC will operate as a one-stop-shop for building and plumbing practitioners and consumers, and will assume all functions and powers held by the VBA after all the provisions in the Building Legislation Amendment (Buyer Protections) Act 2025 and the Domestic Building Contracts Amendment Act 2025 take effect.

Human rights

In light of the large scope of this Bill, this Statement of Compatibility continues with an outline of the rights generally engaged by the Bill and then discusses the compatibility of relevant Parts of the Bill with those rights.

The human rights protected by the Charter that are relevant to this Bill are as follows:

Right to protection from discrimination (section 8)

Section 8(2) of the Charter provides that every person has the right to enjoy their human rights without discrimination. Section 8(3) of the Charter relevantly provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. The purpose of this component of the right to equality is to ensure that all laws and policies are applied equally, and do not have a discriminatory effect.

‘Discrimination’ under the Charter is defined by reference to the definition in the Equal Opportunity Act 2010 (EO Act) on the basis of an attribute in section 6 of that Act, which relevantly includes disability and ‘profession, trade or occupation’. The EO Act does not define ‘profession, trade or occupation’, however a fair reading would suggest that this section protects Victorians who face discrimination and stigma because of their employment. Direct discrimination occurs where a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute. Indirect discrimination occurs where a person imposes a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with a protected attribute, but only where that requirement, condition or practice is not reasonable. Section 9(3) of the EO Act sets out a number of factors to be considered in deciding reasonableness, which in summary are:

•   the nature and the extent of the disadvantage caused;

•   whether the outcome is proportionate to what the respondent sought to achieve by imposing the requirement, condition or practice;

•   the costs of any alternative measures;

•   the respondent’s financial circumstances; and

•   whether reasonable adjustments or accommodation could be made to reduce the disadvantage caused.

Freedom from forced work (section 11)

Section 11 of the Charter provides that a person must not be made to perform forced work or compulsory labour. ‘Forced or compulsory labour’ relevantly does not include work or service that forms part of normal civil obligations. While the Charter does not define ‘normal civil obligations’, comparative case law has considered that to qualify as a normal civil obligation, the work or service required must be provided for by law, must be imposed for a legitimate purpose, must not be exceptional or have any punitive purpose or effect.

Right to privacy and reputation (section 13)

Section 13(a) of the Charter provides that a person has the right not to have their privacy unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought. The right to privacy is broad in scope and encompasses rights to physical and psychological integrity, individual identity, informational privacy and the right to establish and develop meaningful social relations.

This right has been interpreted to extend to matters relating to the right to seek employment, and may be interfered with where employment restrictions impact sufficiently upon the personal relationships of the individual and otherwise upon the person’s capacity to experience a private life (ZZ v Secretary, Department of Justice [2013] VSC 267).

Right to freedom of expression (section 15(2))

Section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds.

However, section 15(3) provides that special duties and responsibilities attach to this right, which may be subject to lawful restrictions reasonably necessary to respect the rights and reputations of others, or for the protection of national security, public order, public health or public morality.

Freedom of association (section 16(2))

Section 16(2) of the Charter provides that every person has the right to freedom of association with others. Although this right is generally concerned with allowing people to pursue common interests in formal groups, it has been broadly construed to include private and business associations and is not confined to participation in formal groups.

Right to take part in public life (section 18)

Section 18(1) of the Charter provides that every person in Victoria has the right, and is to have the opportunity, without discrimination, to participate in the conduct of public affairs, directly or through freely chosen representatives. Section 18(2)(b) further provides that every eligible person has the right, and is to have the opportunity, without discrimination, to have access, on general terms of equality, to the Victorian public service and public office.

Right to property (section 20)

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

Right to a fair hearing (section 24(1))

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The concept of a ‘civil proceeding’ is not limited to judicial decision makers, but may encompass the decision-making procedures of many types of tribunals, boards and other administrative decision-makers with the power to determine private rights and interests.

The right may be limited if a person faces a procedural barrier to bringing their case before a court, or where procedural fairness is not provided. However, the entire decision-making process, including reviews and appeals, must be examined in order to determine whether the right is limited.

Presumption of innocence (section 25(1))

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

Right not to be tried or punished more than once (section 26)

Section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which they have already been finally convicted or acquitted in accordance with law. This right reflects the principle of double jeopardy. However, the principle only applies in respect of criminal offences ‍– it will not prevent civil proceedings being brought in respect of a person’s conduct which has previously been the subject of criminal proceedings, or vice versa.

Penalties and sanctions imposed by professional disciplinary bodies generally do not usually constitute a form of ‘punishment’ for the purposes of this right as they are not considered to be punitive.

Human rights issues

The commissioners and the chief executive officer of the Building and Plumbing Commission

Chapter 3 of the Bill concerns the Regulatory and Review Entities established under the Bill, namely the BPC (Part 3.1, Division 1), insurance manager (Part 3.1, Division 5), chief dispute resolution officer (Part 3.1, Division 6), State Building Surveyor (Part 3.2), Building Monitor (Part 3.3), the Building Appeals Tribunal (Part 3.5), and Municipal councils (Part 3.4).

Part 3.1 of the Bill includes provisions relating to the membership and staffing of the BPC. Clause 43 provides that the BPC consists of a commissioner appointed as chair and up two additional commissioners. Clause 58 provides that the BPC may employ an eligible person as the chief executive officer of the BPC.

Clause 44 provides that a person is an eligible person to be a commissioner if the Minister considers that they are of good character and high standing in the community and the person has extensive or specialist knowledge, expertise or experience in one or more specified fields including building, plumbing, architecture, consumer protection or dispute resolution (clause 44(1)–(2)).

Pursuant to clause 44(3) a person is not eligible to be a commissioner if they have, within the preceding 2 years, held a licence or registration under Parts 11, 11A or 12A of the Building Act, been a developer or been employed by a developer, carried out, or been employed or engaged by a person or body carrying out, relevant lobbying activity for or on behalf of the people listed above, including if their name is or has been contained in the register of lobbyist kept under section 66 of the Public Administration Act 2004 or a similar register kept under an Act of the Commonwealth or of another State or a Territory. A person is also not eligible to be the CEO of the BPC if any of these matters apply to them or if the person holds other specified positions (clause 59).

Clause 45 provides for the appointment of the chair of the BPC. Similarly, clause 46 provides for the appointment of up to 2 eligible persons as additional commissioners (total of 3). The chair or a commissioner must not engage in any employment or business outside the office of commissioner without the approval of the Governor in Council (clauses 45(4) and 46(5)).

Further, clause 53 provides that a person must not within 2 years after ceasing to be a commissioner:

•   become registered or licenced under Parts 11, 11A or 12A of the Building Act;

•   become a developer or employed by a developer; or

•   carry out relevant lobbying activity, or become employed or engaged by a person or body carrying out relevant lobbying activity.

Right to equality and right to take part in public life

These provisions outlining the requirements for an ‘eligible person’ to be a commissioner or chief executive officer may limit the rights to equality and public life by excluding people by reference to their ‘profession, trade or occupation’. However, to the extent that these rights are limited, I consider that these limitations are minor, and are reasonable and demonstrably justified.

These provisions are necessary to promote the intent of the reforms and ensure the independence and expertise of the BPC. The provisions do this by removing any real, potential, or perceived conflicts of interest of members eligible for appointment. The provisions also ensure that the commissioner and chief executive officer roles are held by a person with extensive or specialist knowledge in one or more relevant fields, which is essential in a regulated sector involving highly technical knowledge.

Right to privacy

Clauses 45 and 46, which prohibit a commissioner from engaging in employment or business outside the office of commissioner without the approval from the Governor in Council, and clause 53, which prohibits a commissioner holding certain licenses, registrations, development or lobbying roles for two years after ceasing holding that office, will necessarily interfere with the right to privacy.

It is recognised that clauses 45 and 46 will impose more restrictions on a person’s ability to engage in other work without approval while they are a commissioner, including extending to work that may be unrelated to the building and plumbing industry. It is also recognised that clause 53 imposes restrictions on a person’s ability to engage in certain activities for an extended period after ceasing being a commissioner. The provisions relate only to the appointment of the chair of the BPC and other commissioners and are confined in their scope, allowing commissioners to still undertake outside work with approval and only prohibit activities which relate directly to the building and plumbing industries. These provisions are principally directed at ensuring independence and integrity of these public offices, and preventing risks of conflict of interests, misuse of confidential information or undue influence. They are essential to upholding public trust and ensuring impartial decision-making. These types of restrictions are commonly attached to public office to insulate holders from risks of corruption. Accordingly, I consider this interference to be lawful and not arbitrary.

Vacation of the office of the Building Monitor or removal of the Building Monitor or a commissioner

Clause 102(c) provides that the office of the Building Monitor becomes vacant if the Building Monitor is convicted or found guilty of an indicatable offence or an offence that, if committed in Victoria, would be an indicatable offence.

Clause 49 provide that the Governor in Council may, on recommendation of the Minister, remove a commissioner from the office on any of the following grounds:

a)   engaging in employment or business outside the office of commissioner without the approval of the Governor in Council;

b)   inability to perform the functions of the office;

c)   neglect of duty;

d)   misconduct;

e)   being convicted, or found guilty, of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence;

f)   any other ground on which the Minister is satisfied that the person is unfit to hold office.

The nexus between a criminal conviction and the vacation of or removal from office engages:

•   the right not to be punished more than once for the same offence (section 26);

•   the right to fair hearing (section 24)

•   the right of presumption of innocence (section 25(1)); and

•   the right to take part in public life (section 18).

The right not to be punished more than once for the same offence and the right to have a criminal charge decided by a court

Section 26 will be relevant if the vacation of the office of the Building Monitor, or the removal from office of a commissioner or Building Monitor under clauses 49(e), 102(c) or 103(1)(e) constitutes an additional ‘punishment’ for an offence for which the person has been finally convicted. This right may also be relevant to clauses 49(f) and 103(1)(f) which leave open the possibility that a criminal charge could be considered by the Minister as relevant to the assessment of fitness to hold office. Relevant to the concept of punishment, and following recent decisions of the High Court concerning the constitutional validity of schemes involving ‘legislated punishment’ in the Commonwealth sphere, it may be suggested that the section 24 right to have a criminal charge decided by a court implies a principle that a person may only be punished as a result of a charge being proven in a criminal proceeding.

In my view, clauses 49, 102 and 103 do not engage these rights as the vacation of, or the removal commissioner from office by reference to a criminal charge (as part of an assessment of unfitness to hold office), conviction or guilty finding of criminal conduct is not to be characterised as imposing a form of punishment, for the following reasons:

•   The mere fact that a law operates to directly impose a detriment on a particular person does not make it punitive. Rather, what the authorities show is that the criteria by reference to which the detriment is imposed, and also the purpose for which it is imposed, are central to determining whether the imposition of a particular detriment is properly characterised as punitive. The provisions serve a protective purpose, that is to ensure the integrity and good governance of the Building Monitor and BPC and to safeguard the public trust and confidence in the Building Monitor, the BPC and its commissioners. Consistently with this purpose, a criminal charge will not result in automatic removal from office. Rather, the touchstone remains the Minister being satisfied that the person is unfit for office, which could include consideration of a particular charge and its surrounding circumstances.

•   The effect of being removed from office is to prevent a person from performing the functions or duties of, or exercising the powers of, the Building Monitor or a commissioner of the BPC. It is aimed at preventing the functions of the Building Monitor or the BPC from being influenced by a person whose eligibility has come into question.

•   The nature of the detriment being imposed, being removed from office, is not of a nature traditionally associated with a criminal sanction. No further conviction flows from this outcome nor is a person liable for subsequent sanctions of a criminal nature, such as a fine or imprisonment as a result of being removed.

Accordingly, as the vacation of the office of the Building Monitor or removal from office for a person convicted of an indictable offence, or whose criminal charge is considered by the Minister as relevant to the assessment of fitness to hold office, is not a punishment, clauses 49, 102 and 103 do not amount to double punishment for the purpose of section 26, or engage the determination of a criminal charge pursuant to section ‍24, and these rights are therefore not limited.

The right to be presumed innocent

While this right has been found to only apply to criminal proceedings (and not, by contrast, to other proceedings such as disciplinary or civil liability proceedings), it does afford an accused a right to have the benefit of the doubt, and to be treated in accordance with this principle. It is suggested that the right incorporates duties on others to refrain from prejudging the outcome of a trial – including to abstain from actions that affirm the guilt of an accused.

While Victorian case law has yet to consider in more detail the broader application of this right beyond criminal proceedings, the vacation of the office of the Building Monitor under clause 102(c), the removal of a commissioner under clause 49(e) or the Building Monitor under clause 103(1)(e) is only on the grounds of being convicted of or found guilty of an indictable criminal offence. Accordingly, these provisions only have operation where charges have been proven. Consequently, this provision does not impose a limit on the right to be presumed innocent.

Assuming that this right has application beyond criminal proceedings, taking a criminal charge into account in the assessment of fitness for office under clauses 49(f) and 103(f) may limit this right, particularly if that criminal charge forms the basis of an adverse finding. However, I consider that any such limitation is reasonably justified. The purpose of clauses 49 and 103 are to safeguard the integrity of these offices by ensuing the relevant office holder is a fit and proper person. This is particularly important noting the public significance of these offices, the far-reaching impact of commissioners’ decisions and the broad remit of Building Monitor and ability to influence system-wide change. The impact on this right is confined and directed to this purpose as criminal charges may only be taken into account by the Minister where the particular circumstances allow for a conclusion that a person’s fitness for office will be impacted. Further, in making this assessment the Minister is a public authority and bound to consider and act compatibility with the Charter. As such, I conclude that this limitation is in proportion to its aim and that this provision is compatible with section 25(1) of the Charter.

The right to take part in public life

The scope of section 18 of the Charter has not yet been thoroughly examined by Victorian courts. It is not clear whether section 18(2)(b) is engaged by the vacation and removal provisions in clauses 49(e) and (f), 102(c) or 103(1)(e) and (f), given this element of the right is principally concerned with affording access to public office on general terms of equality. Clauses 49(e) and (f), 102(c) or 103(1)(e) and (f), which provide for the vacation of office or grounds for removal from office on account of being convicted of an indictable offence, does not discriminate against the person. This is because being convicted of a criminal offence is not a protected attribute within the meaning of the EO Act. It follows, in my view, that the right to take part in public life is not limited by these clauses.

Disclosure of interests by a commissioner

Clause 52 requires that a commissioner who has a relevant interest must disclose the interest to the Minister as soon as practicable after becoming aware of it. A commissioner has a ‘relevant interest’ if they have a direct or indirect financial interest in the building, plumbing or construction industry and the interest is not because the commissioner is a consumer of goods or services that are generally available to members of the public.

Right to privacy and freedom of expression

To the extent that the disclosures required by clause 52 contain personal information, the Bill will engage the right to privacy. In my opinion, any limit on the right to privacy imposed by clause 52 is reasonable and justified. Although these provisions require a commissioner to disclose information, it is limited to a relevant interest, being a direct or indirect financial interest in the building, plumbing and construction industry that is not because they are a consumer of generally available goods or services. This provision is aimed at ensuring the independence of the BPC and only applies to a commissioner, being a person who has voluntarily assumed a role to which special obligations apply, including these obligations of disclosure of matters that are within the public interest to declare. Accordingly, I do not consider this interference is unlawful or arbitrary.

Protection from liability for commissioner, Building Monitor and other employees

Clauses 73 and 113 provide that a commissioner, a person employed or engaged by the BPC and the Building Monitor or acting Building Monitor is not personally liable for anything done or omitted to be done in good faith in the performance of a function or the exercise of a power under certain Acts, or in the reasonable belief that the act or omission was in the performance of these functions or exercise of these powers. Clauses 73(2), 73(4) and 113(2) provide that any such liability attaches to the BPC (for a commissioner or a person employed or engaged by the BPC) or the State (for the Building Monitor or acting Building Monitor).

Property rights and right to fair hearing (sections 20 and 24(1))

The fair hearing right is relevant where statutory immunities are provided to certain persons as this right has been held to encompass a person’s right of access to the courts to have their civil claim submitted to a judge for determination. Similarly, insofar as a cause of action may be considered ‘property’ within the meaning of section 20 of the Charter, clauses 73 and 113 may also engage this right.

The exclusion from personal liability does not deprive a person of their property rights nor interfere with the right to a fair hearing, because parties seeking redress are instead able to bring a claim against the State or the BPC. The provision also serves a necessary purpose by ensuring that the commissioner, those employed or engaged by the BPC and the Building Monitor are able to exercise their functions effectively and independently without the threat of personal repercussions. Additionally, these individuals will still remain personally liable for any conduct not performed in good faith or outside their statutory functions. Accordingly, this provision does not limit property rights or the right to a fair hearing under the Charter.

Information gathering powers of the State Building Surveyor and the Building Monitor

Part 3.2 of the Bill relocates a number of provisions establishing the State Building Surveyor from the Building Act to the Bill. This Part provides for the appointment of the State Building Surveyor to (amongst other objectives) be a primary source of technical expertise on the standards and requirements for building and plumbing work to those industries, to facilitate compliant building and plumbing work and practices, to encourage improvements to regulatory oversight and practices within the building system to facilitate high quality outcomes and to support improvements to practices within the building surveying profession (clause ‍88). This Part also outlines the functions and powers of the State Building Surveyor.

The State Building Surveyor will now be empowered under clause 94 to require, by notice in writing, a person or body to give the State Building Surveyor information specified in the notice. The purpose of this power is for the State Building Surveyor to exercise its functions, including to monitor a council’s delivery of their building control functions and monitor developments and trends relevant to building and plumbing work in the State. Under clause 93, the State Building Surveyor may also issue binding determinations on the interpretation of a technical standard or requirement for building work or plumbing work.

Part 3.3 of the Bill will re-enact a number of provisions previously included in the Building Act. This Part provides for the appointment of a Building Monitor to (amongst other objectives) improve the experiences of domestic building consumers and affected parties of the building system by advocating for their interests at a systemic level and providing independent expert advice on these issues to the Minister and to persons and bodies involved in the building industry (clause 98). As was previously provided for under section 208K of the Building Act, the Building Monitor will be empowered under clause 109 to require, by notice in writing, a person or body to give the Building Monitor information specified in the notice. The purpose of this power continues to be for the Building Monitor to exercise its functions, including to collect and analyse information from certain building system entities to identify issues affecting domestic building affected parties. Under clause 112 (previously section 208P of the Building Act), the Building Monitor will be required to annually publish a Building Monitor Issues Report that is to specify the systemic issues that the Building Monitor has identified as affecting domestic building affected parties and make recommendations to the Minister on ways to address these issues.

The following analysis covers information obtained by both the State Building Surveyor or the Building Monitor. I note that the State Building Surveyor may be less likely to collect personal information, but the provisions in the Bill provide appropriate protections if that is the case.

Right to privacy

To the extent that the information obtained by the State Building Surveyor or the Building Monitor includes personal information, the Bill will engage the right to privacy. In my opinion, any limit on the right to privacy imposed by Parts 3.2 and 3.3 of the Bill is reasonable and justified. Although these provisions require the State Building Surveyor and the Building Monitor to gather and analyse personal and identifying information, I do not consider these functions are unlawful or arbitrary.

The types of information that can be requested by the State Building Surveyor under clause 94(1) or the Building Monitor under clause 109(1) are limited to information that is relevant to the performance of the functions of the State Building Surveyor and the Building Monitor respectively. The functions of the State Building Surveyor are specified under clause 89 and relate to providing technical expertise through binding determinations on the interpretation of building and plumbing regulations, codes and standards for the building and plumbing sector. The functions of the Building Monitor are specified in clause 99 and relate to matters of concern to domestic building affected parties.

Under clauses 94(2) and 109(2), the State Building Surveyor and Building Monitor are also required to consult with a person or body before giving them a notice under those sections to provide information or data. This is intended to enable the State Building Surveyor or Building Monitor to gain an understanding of what information is held by the person or body who will receive a notice and to ensure the notice does not unintentionally gather information that the State Building Surveyor or Building Monitor does not need for their functions.

The persons or bodies from whom or which the Building Monitor may require information be provided are limited to those listed in clause 109(4) of the Building Act and they are confined to public sector persons or bodies.

The persons or bodies from whom or which the State Building Surveyor may require information is confined to those listed in clause 94(4) and include a council, a building practitioner, a registered plumber or licenced plumber or a prescribed person or body. Consequently, clause 94(4) is not confined to public sector persons or bodies. A building practitioner, registered plumber or licensed plumber are taking part in a regulated industry and so may have a reduced expectation of privacy in those circumstances.

The Bill will also include clauses 95 and 96, and 110 and 111 (previously sections 208L and 208M in the Building Act respectively) to limit how the State Building Surveyor and the Building Monitor may use the information gathered. Under clauses 96 and 110, the State Building Surveyor and the Building Monitor must not publish or authorise the publication of any personal information or data or commercially sensitive information or data that has not first been de-identified or aggregated with similar information (as the case requires) before it is published.

Clauses 95 and 111 make it an offence if the State Building Surveyor or the Building Monitor or any person assisting or acting on behalf of the State Building Surveyor or Building Monitor uses or discloses information (including personal information) obtained in the course of performing the functions of the State Building Surveyor or Building Monitor other than for the purposes of performing the their functions.

Further, under clause 112 (previously section 208P of the Building Act), the Building Monitor will be required to gather information transparently, by including in an Issues Report information about when and to whom a notice under clause 109 was given, the type of information or data required under the notice and whether the Building Monitor is a party to any information sharing arrangements or agreements.

The Bill also includes clause 100(2) (previously section 208G of the Building Act) to provide that the Building Monitor, when exercising its powers, must comply with any relevant requirements specified by the Bill or under any other Act. The purpose of this provision is to restate, for the avoidance of doubt, the obligation of the Building Monitor, as a statutory entity, to comply with legislation such as the Information Privacy Principles set out in Schedule 1 of the Privacy and Data Protection Act 2014.

These provisions establish an appropriate balance between enabling the State Building Surveyor and the Building Monitor to perform their functions and achieve their statutory objectives by ensuring they can transparently gain access to the information needed to understand the issues faced by domestic building consumers and affected parties in the building sector, while protecting the rights of individuals to have their privacy and reputations protected.

Consequently, I consider that these provisions under the Bill are compatible with the right to privacy under section 13 of the Charter.

Right to freedom of expression

The information-gathering powers of the State Building Surveyor and the Building Monitor to require persons to provide information or data specified in a notice may also interfere with the right to freedom of expression, to the extent that the right extends to a right not to express or impart information. While the information gathering powers may impose a limitation on the freedom of expression, I consider that this is a lawful restriction which is reasonably necessary to both protect public order and the rights of others within the meaning of the internal limitation in section 15(3) of the Charter. The expression ‘protection of … public order’ is a wide and flexible concept and includes measures for ‘peace and good order, public safety and prevention of disorder and crime’ (Magee v Delaney (2012) 39 VR 50) and can include laws that enable the public to engage in their personal and business affairs free from unlawful interference to their person or property. The meaning of protecting the rights of others is similarly broad and would include restrictions reasonable necessary to protect the property rights of others (Magee v Delaney (2012) 39 VR 50).

This restriction on freedom of expression is confined to a very particular context, being the use of information gathering powers to facilitate the operation of the State Building Surveyor and the Building Monitor and their effective completion of their functions. In this context, there is a reduced expectation of privacy. Further, I consider that this restriction is closely tailored to its purpose of supporting the functions of the State Building Surveyor and the Building Monitor. I consider there are no less restrictive means of achieving this purpose and in turn facilitating the State Building Surveyor to facilitate high quality outcomes and improvements within the building surveying profession and the Building Monitor to improve the experiences of domestic building consumers. These powers are required to enable the State Building Surveyor and the Building Monitor to effectively complete their functions.

Accordingly, I am of the view that to the extent the right is limited, that limit falls within section 15(3) of the Charter as it is reasonably necessary to protect public order and the rights of others. As such, these provisions impose no limitation on the freedom of expression.

Review by the Building Appeals Tribunal

Parts 3.5 and 5.3 of the Bill provide for the establishment, powers, functions, procedural processes and jurisdiction of the Building Appeals Tribunal (Tribunal), re-enacting the provisions in Part 10 and Schedule ‍3 of the Building Act concerning the Building Appeals Board, subject only to minor changes. The body replacing the Building Appeals Board will be called a Tribunal to better reflect the nature of the work that the Building Appeals Board, and the body that replaces it, undertakes and will undertake (respectively).

The Tribunal established under this Bill is an independent tribunal which hears and determines disputes (as specified in Part 5.3, Division 3), other applications (arising under Part 5.3, Division 4) as well as appeals from decisions of other decision-makers (Part 5.3, Division 2) made under various acts, including under the Building Act. All members of the Tribunal are required to have relevant expertise and experience, including relating to the building industry (clause 121(1)). Tribunal members can be removed by the Governor in Council, on the recommendation of the Minister, on the grounds of an inability to perform their functions, neglect of duty, misconduct, a conviction or finding of guilt in relation to an indictable offence or, on the basis of any other ground that the Minister is satisfied means the member is unfit to hold office (clause 129).

The Tribunal has broad and flexible powers to conduct a proceeding in any manner it sees fit (clause 138(2), particularly sub-clauses (2)(a), (b), (d) and (f)) and when hearing an appeal may consider matters not raised before the decision under appeal was made (clause 216(2)). Despite this broad discretion, the Tribunal is still bound by the natural rules of justice (clause 138(2)(c)) and is required to give the parties a reasonable opportunity to make written or oral submissions (clause 138(1)), including on any advice the Tribunal has received to assist in dealing with the proceeding (clause 138(4)). Parties with a relevant interest in the matter have the right to be served with a copy of the document commencing a proceeding which specifies the nature of and the grounds for commencing the proceeding, the relief sought and other matters specified in regulations (clauses 136 and 137). The Tribunal is required to conduct a hearing in public unless it considers it is in the public interest or in the interest of justice to conduct the proceeding in private (clause 138(2)(e)). The Tribunal must also provide the parties to the proceeding with a written determination (clause 139(1) and (4)), as well as reasons for that determination upon request (clause 139(5)–(6)).

Fair hearing

The Tribunal determines private rights and interests of parties and so conducts ‘civil proceedings’ within the meaning of section 24 of the Charter. As such, the decision-making process and procedure of the Tribunal needs to be assessed to determine whether there is any limitation of the right to fair hearing when it conducts a proceeding.

Having regard to the provisions outlined above, I consider that there are sufficient protections in place to ensure a party before the Tribunal will have their fair hearing rights upheld. This Bill ensures that a person affected by a decision of the Tribunal will know the matters relevant to the decision, have a reasonable opportunity to present their case and respond to adverse information. They will also have their case heard by an independent, competent Tribunal after a public hearing (unless there are legitimate public interest reasons for conducting the matter in private).

For these reasons, I consider that the hearing of matters by the Tribunal pursuant to this Bill does not limit and in fact promotes the right to fair hearing.

Immunities for members, legal practitioners and witnesses in matters before the Building Appeals Tribunal

Pursuant to clause 149(1), Tribunal members, in the performance of their functions, have the same protection and immunity as a Judge of the Supreme Court. Pursuant to clause 149(2), legal practitioners or other people appearing on behalf of another person before the Tribunal are afforded the same protections and immunities as an Australian legal practitioner has in appearing for a party in a proceeding in the Supreme Court. Finally, clause 149(3), provides that a person appearing as a witness before the Tribunal has the same protection as a witness in a proceeding in the Supreme Court, and is subject to the same liabilities as a witness in a Supreme Court proceeding.

Fair hearing and right to property

The fair hearing right is relevant where statutory immunities are provided to certain persons as this right has been held to encompass a person’s right of access to the courts to have their civil claim submitted to a judge for determination. Similarly, insofar as a cause of action may be considered ‘property’ within the meaning of section 20 of the Charter, these immunity provisions may also engage this right.

A judge of the Supreme Court is immune from or has a defence to a civil suit arising out of acts done in the exercise, or purposed exercise, of their judicial function or capacity. A Tribunal member would thus have the same protection in relation to the exercise, or purported exercise, of their functions provided for under this Bill.

Legal practitioners acting in matters before the Supreme Court, and so before the Tribunal, are immune from liability for negligence in relation to the conduct of a case in court and for work intimately connected with the conduct of this case. This immunity does not cover work unrelated to court proceedings and is subject to certain exceptions, such as where the practitioner has acted dishonestly or fraudulently.

As these immunities act as a bar to bringing a civil claim in certain circumstances, the fair hearing right and property right will be limited by this clause.

However, I consider that this limitation is reasonable and justified. The scope of these immunities is broad but not unlimited, requiring that a Tribunal member act within their functions and a practitioner provide services or a witness give evidence associated with a proceeding. Further, these immunities are necessary to ensure to facilitate the proper administration of justice in the matters before the Tribunal. The immunity for Tribunal members facilitates the independent performance of their functions free from the spectre of litigation, and enhances the finality of the Tribunal’s decisions. Similarly, immunities provided to legal practitioners, and the protections and liability of witnesses also encourage the giving of independent advice or evidence without the threat of suit from litigants who may be dissatisfied with the outcome of a proceeding, assists with the effective administration of the proceeding, and avoids multiplicity of actions where the matter could be effectively relitigated outside the regular appeal processes. In this way, these immunities assist with the efficient and proper regulation of the building system.

For these reasons, I consider that the limitation imposed on the right to a fair hearing and right to property by this clause is justified and so compatible with the Charter.

Application for modification of building regulations relating to access for persons with disabilities

Clause 231 provides that an application may be made to the Tribunal for a determination that a provision of the building regulations relating to access for persons with disabilities does not apply or applies with modifications on the ground that compliance with this provision would impose unjustifiable hardship on the owner of a building, the purchaser of a particular lot or the lessee of a building who proposes to have the building work carried out. The criteria upon which the Tribunal is to assess whether an application should be granted is consistent with, and implements in Victoria, Part 4.1 of the Disability (Access to Premises – Buildings) Standards 2010 (Cth) (Commonwealth Access Standards), which is an instrument under the Disability Discrimination Act 1992 (Cth) introduced by the Commonwealth Government to develop a set of uniform access provisions.

Clause 231(4) provides that the Tribunal must take into account all relevant circumstances of a particular case including, but not limited to, the costs associated with compliance, any effect compliance would likely have on the applicant’s financial viability, any exceptional technical factors, the benefits or detriment likely to accrue from compliance or non-compliance including to persons with disabilities, and the nature and results from any consultation undertaken. If a substantial issue of unjustifiable hardship is raised having regard to the factors mentioned in subclause (4), the Tribunal must consider the extent to which substantially equal access to public premises may be provided otherwise than by compliance with the relevant provision and any measures undertaken or to be undertaken in order to ensure substantially equal access (clause 231(5)). Clause ‍231(6) provides that a determination under this section must provide for compliance with an access provision of the building regulations to the maximum extent not involving unjustifiable hardship.

Right to protection from discrimination

The access provisions in the building regulations are designed to protect and promote the rights of people with disabilities to equitably access buildings, and so facilitate access to services, their place of work, recreation or otherwise allow participation in public life. By allowing for the disapplication or modification of these provisions where compliance with the improved accessibility requirements would impose unjustifiable hardship on the building permit applicant, clause 231 may result in indirect discrimination and so limit the right to protection from discrimination under section 8 of the Charter.

However, for the reasons that follow, I consider that this clause places a reasonable condition on the operation of the access provisions and so does not constitute indirect discrimination and therefore does not limit this right under the Charter.

As set out above, clause 231 requires that the Tribunal to have close regard to the particular facts of a case and consider many of the same factors which go to reasonableness as defined in section 9(3) of the EO Act. The Tribunal is required to carefully balance the rights of people with disabilities to dignified and equitable access to buildings with the considerations of cost-effectiveness, achievability and certainty for builders and occupiers. The Bill also requires that compliance with an access provision is maintained to the maximum extent possible, ensuring that reasonable alternatives or possible carve outs to any exemption granted are required to be actively considered and must be ordered by the Tribunal where possible (for example, as outlined at Part 4.1(2) of the Commonwealth Access Standards, while enlarging a lift may impose unjustifiable hardship, upgrading the lift controls panel to provide braille and tactile buttons may not). Further, it is noted that the onus is on the applicant to establish that there is an unjustifiable hardship, indicating that exemption will only be provided where the Tribunal is be satisfied of this hardship on the basis of cogent evidence which has been tested using processes and procedures that uphold fair hearing rights (as discussed above).

Given these protections, I consider that this clause is reasonable and does not limit the right to protection from discrimination under section 8 of the Charter.

Private building surveyors – appointment and transfer of functions

Chapter 4 of the Bill relates to building surveyors. The following provisions largely re-enact existing provisions in Part 6 of the Building Act, subject to minor changes.

Clauses 155 and 160 introduce the concept of a ‘related person’ in relation to a builder and private building surveyor, which include such persons as another partner in the partnership if the builder or surveyor is a member of a partnership, an officer or director of a body corporate if the builder or surveyor is a body corporate, and their spouse or domestic partner, sibling, parent or child.

Clause 155 prohibits builders who have entered into a major domestic building contract, or who act (or propose to act) as a domestic builder and related persons to these builders, from appointing a private building surveyor on behalf of the owner of the land on which domestic building work is to be carried out.

Clause 160 relevantly prohibits private building surveyors from undertaking building surveyor functions in relation to a building or building work if they or a related person:

•   prepared the design of the building or building work;

•   is or was, within the prescribed period, employed or engaged by the person or body that prepared the design of the building or building work; or

•   had a pecuniary interest in the building or building work, or in the body that prepared the design of the building or building work or carried out the building work.

Clause 164 provides that the BPC may direct a registered building surveyor who has employed or engaged a person to act as a private or designated building surveyor to transfer all of that person’s functions under building legislation to another surveyor if certain circumstances apply, including that in the opinion of the BPC, the private or designated building surveyor is incapable of carrying out the work because they are mentally or physically infirm.

Right to equality

To the extent that clause 160 restricts a person’s ability to work as a private building surveyor on the basis of their prior employment activity, it may give rise to ‘discrimination’, within the meaning of the EO Act as discussed under the equality right above, on the basis of the protected attribute of employment activity (section ‍6(c), EO Act).

Similarly, the BPC’s power to deprive a person of their employment functions under clause 164 on the basis of mental or physical infirmity may engage the right to equality under section 8(3) of the Charter as it would constitute discrimination on the basis of a protected attribute, specifically being disability (section 6(e), EO Act).

I consider that any such limits on the right to equality are reasonably justified under section 7(2) of the Charter. This is because in respect of clause 160, the core functions of a private building surveyor include the issuing of building and occupancy permits and the conduct of inspections of buildings and building work (clause ‍154(1)). Therefore, the exclusion of persons involved in the design of the building or building work from assessing and approving the safety and quality of their own work is necessary to ensure the independence and proper functioning of these regulatory mechanisms.

I also consider that the BPC’s powers under clause 164 to direct the transfer of surveying functions where the surveyor is incapable of carrying out the work are reasonably necessary to ensure that the building surveying work is undertaken and completed to a professional standard, thereby protecting public safety and safeguarding the quality and integrity of the building industry.

Accordingly, I consider that any limits on the right to equality are reasonable and proportionate to achieve the purposes of the limitation.

Right to freedom of association

As the right to freedom of association has been broadly construed to include private associations, clauses 155 and 160 may engage this right by prohibiting the appointment, engagement or employment of persons on the basis of their personal or business associations.

However, these amendments are aimed at achieving the legitimate purpose of safeguarding the integrity of the building approval process by avoiding potential conflicts of interest or risks of undue influence. Accordingly, any limitations on the right to free association occasioned by the restrictions on the appointment of private building surveyors are necessary to fulfil a legitimate and pressing purpose that cannot be achieved by less rights-limiting means. I therefore consider that these amendments are compatible with the rights under in section 16 of the Charter.

Appointment of manager for private building surveyor’s business

Clause 169 empowers the BPC to appoint a manager for a private building surveyor’s business if the BPC is of the opinion that the appointment is necessary to protect the interests of other persons in specified circumstances such as suspension or cancellation of the private building surveyor’s registration or their insolvency.

Clause 179 provides that the expenses of the management of the private building surveyor’s business must be paid to the manager from the receipts of the business and any balance paid by the BPC may be recovered in court from the private building surveyor as a debt.

Right to property

‘Property’ under the Charter includes all real and personal property interests recognised under the general law, relevantly including debts. Accordingly, this right may be engaged by the provisions allowing for the appointment of managers, requiring payment to the managers from the receipts of the business and enabling the BPC to recover outstanding expenses as a debt owed by the private building surveyor.

However, the right to property will only be limited where a person is deprived of property ‘other than in accordance with the law’, where the law is not publicly accessible, clear and certain, or operates arbitrarily. In this instance, the interference will not be arbitrary, but governed by a clear and accessible process set out in the Bill and subject to reasonable conditions. For example, item 1 of the table in clause 201 relevantly enables the private building surveyor to apply to VCAT for a review of the BPC’s decision to appoint a manager to their business. Further, any claim by the BPC to recover money paid to the manager must be sought in a court of competent jurisdiction such that procedural fairness is afforded to the private building surveyor (clause 179(2)).

Therefore, I am satisfied that the right to property is not limited by these amendments.

Powers of entry

Clause 176 authorises managers appointed by the BPC under clause 169 to enter and remain in or on any building or land used by the private building surveyor’s business for the purpose of exercising their powers under clause 175. This provision also requires the private building surveyor (or their partner, officer, employee, agent or other person with control of documents relating to the appointment of the private building surveyor) to give the manager access to certain information and documents as the manager reasonably requires. The powers of entry also include operating equipment or facilities on the land or in the building; taking possession of any relevant document or thing; securing any relevant document or thing found in or on the building or land against interference if it cannot be conveniently removed; taking possession of any computer equipment or program.

Right to privacy

Section 13 of the Charter provides that a person has the right to not have their privacy unlawfully or arbitrarily interfered with. The determination of whether certain activities amount to an interference with privacy depends on whether the person has ‘a reasonable expectation of privacy’ in all the circumstances. As the building or land used by the private building surveyor’s business are places of work, and a private building surveyor is taking part in a regulated industry, there is a reduced expectation of privacy in relation to such property and premises.

The expectation of privacy would be further diminished by the existence of a regulated matter, where powers are conferred on managers for the important purpose of protecting the interests of other persons in circumstances where the BPC considers the private building surveyor incapable of carrying out their functions.

Further, the entry powers are clearly circumscribed, reasonable and proportionate. For example, the entry powers must only be exercised during normal business hours or other hours with the consent of the occupier of the building or land (clause 176(2)). Further, prior to exercising entry powers, a manager must produce to the occupier the notice of appointment and a prescribed form of identification (clause 176(3)). The manager is also subject to strict confidentiality provisions in respect of information obtained as a result of their appointment (clause 185).

Thus, to the extent that privacy is interfered with, in my opinion it will in circumstances which are neither unlawful or arbitrary. Accordingly, I consider that the provisions are compatible with the right to privacy in section 13(a) of the Charter.

Property rights

As ‘property’ under the Charter includes all real and personal property interests recognised under the general law, the power of managers to take possession of any document or thing from the building or land used by the private building surveyor’s business under clause 176 may also engage section 20.

However, the provision empowering the removal of documents or things does not limit property rights, as any interference with property through such removal would be undertaken in accordance with the provisions of the Bill, which are accessible, clear and certain, and sufficiently precise to enable a manager to perform their functions. For example, a manager must only take possession of any computer equipment or program if it is reasonably required for a purpose relevant to the management of the private building surveyor’s business (clause 176(1)(f)). Any deprivation of property is thereby reasonably necessary to achieve the important objective of carrying out work under any existing appointment of the private building surveyor or completing any existing work of the business. In addition, a number of safeguards regulate the handling, retention and return of documents or things taken into possession by the manager (clause 176(4)–(7)), including requirements to take all reasonable steps to return documents or things as soon as they are no longer required. These safeguards ensure that the interference with a person’s property is the least restrictive possible whilst also ensuring the necessary functions are carried out.

Protection from liability for building surveyors

Clause 178 provides that 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 (in the reasonable belief) that the act or omission was in carrying out a function of the manager under Division 3 of Part 4.2 of the Bill.

Clause 188 provides that a municipal or private building surveyor appointed under Chapter 4 is not liable for anything done or omitted to be done in good faith in reliance on a certificate given to the surveyor under section 238 of the Building Act by a registered building practitioner or an endorsed building engineer. The clause provides that the liability instead attaches to registered building practitioner or endorsed building engineer who have the certificate.

Clause 189 provides that a relevant building surveyor is not liable for anything done or omitted to be done in good faith in approving a draft building manual under section 41B(1) of the Building Act. The clause provides that the liability that would have attached to the relevant building surveyor instead attaches to the applicant for the relevant occupancy permit.

Fair hearing and property rights

Where an immunity clause restricts a person’s ability to access a court by effectively removing their ability to bring an action in court and depriving them of their ability to obtain effective relief due to the absence of an appropriate defendant, the right to a fair hearing and right to property may be engaged. The exclusion from personal liability for building surveyors acting in good faith under clauses 188 and 189 does not deprive a person of their property rights nor interfere with the right to a fair hearing, because parties seeking redress are instead able to bring a claim against another person.

As the immunity in clause 178 acts as a complete bar to bringing a civil claim in certain circumstances, the fair hearing right and property right will be limited by this clause. However, for the reasons that follow, I consider that this clause is compatible with these rights.

Any deprivation of the ability to bring an action will be ‘in accordance with law’ as these provisions are drafted in clear and precise terms and are reasonably necessary to achieve the important objective of ensuring that persons appointed as managers for the purpose of protecting others are able to effectively perform their functions without the threat of significant personal repercussions. If the role attracted personal liability, this would impact the availability of qualified appointments, which are essential to ensuring critical building projects and regulatory functions remain active and compliant. The scope of the immunities is also limited to good faith actions and omissions such that it is proportionate to the legitimate aim sought. As such, there are no less restrictive means of achieving the Bill’s objectives. Accordingly, the protection from liability provisions are appropriately granted and so, are compatible with the rights to fair hearing and property.

BPC’s directions powers

Clause 190 empowers the BPC to direct a municipal or private building surveyor to carry out certain surveyor functions if the BPC considers it necessary for the purposes of building legislation.

Freedom from forced work

This provision may engage the right to freedom from forced work by requiring a municipal or private building surveyor to undertake functions that the BPC considers necessary for the purposes of building legislation. While it is unclear the degree to which the right would even be engaged by a power of direction over a holder of a public office (being a municipal building surveyor), it can be accepted that the right would at least be relevant to a power of direction over a private building surveyor.

As outlined above, ‘forced or compulsory labour’ relevantly does not include work that forms part of normal civil obligations, which is work provided for by law, imposed for a legitimate purpose, and not exceptional or having a punitive purpose or effect. This would include obligations to undertake work in order to ensure compliance with regulatory standards, particularly where those standards are to protect against risks to persons whose safety is reliant on the compliance of others.

I am of the view that, if the right is engaged, functions required under a direction made under this clause would form part of normal civil obligations and would, therefore, not constitute a limit on the right. A direction requiring the undertaking of certain surveying functions will be provided in accordance with the Bill and will be confined in its impact, in that the direction must be necessary for the purposes of building legislation. As discussed above, the Bill protects the public by ensuring that directions require specific functions to be done in order to support compliance, lift professional standards, and improve outcomes for consumers in the building industry.

Additionally, except where cladding product-related high risk or emergency circumstances apply (sub-clause (5) and (6)), before giving a direction, the BPC must give the municipal or private building surveyor written notice stating the BPC’s intention and the period (being not less than 7 days of the notice) within which the building surveyor may make submissions to the BPC about the matter.

As such, I consider that these amendments are compatible with the right to freedom from forced work.

Appointment of BPC-appointed inspector

Clause 232 provides that the BPC may appoint as a BPC-appointed inspector the following specified persons: a person employed or engaged by the BPC; a person appointed as an authorised officer or inspector by or under another Act; or a person appointed or authorised as an inspector, investigator, authorised officer or authorised person under a prescribed interstate Act. Further, this provision provides that the BPC must not appoint a person to this role unless it is satisfied that they are appropriately qualified, have successfully completed appropriate training, or have appropriate knowledge and experience (subclause 232(3)).

Right to equality and right to take part in public life

By introducing eligibility criteria for these appointments, based principally on their qualifications, training, occupation and employment, these clauses may engage the right to equality on the grounds that they would constitute discrimination on the basis of protected attributes, which includes a person’s employment activity (section 6(c), EO Act) and profession, trade or occupation (section 6(la), EO Act).

On its face, this provision may involve unfavourable treatment on the basis of a person not being employed in one of the professions or occupations listed in clause 232(1), or not having the qualifications, training, knowledge or experience required in clause 232(3). For this reason, the eligibility criteria in these clauses engage the right to equality in section 8(3) of the Charter.

However, I consider any limitations on section 8(3) to be justified given that the eligibility criteria serve a legitimate and important purpose: by requiring a BPC-appointed inspector to have the requisite knowledge, skills and experience to perform their functions, these provisions facilitate the objectives of the BPC’s power to make the appointment, being to perform functions and exercise powers under building legislation, for the purpose of monitoring and enforcing compliance with building legislation, and building and plumbing standards and building safety. The provisions function as a protective mechanism to ensure appointees are appropriately qualified in a role that assumes significant responsibilities concerning matters of public importance, being accountability and oversight of building legislation and the building system.

I therefore consider that the Bill is compatible with the right to equality in section 8 of the Charter.

As the provisions above do not, in my view, constitute discrimination, it follows that the right to take part in public life in section 18 of the Charter is not limited by these provisions.

Power to require production of documents

Clause 249 empowers the BPC to require a person to provide information or produce documents that may assist the BPC in monitoring compliance with building legislation, including by appearing before the BPC and answering questions.

Clause 250 empowers the BPC to require a person to provide certain information, produce certain documents or to give that information (either orally or in writing) or produce those documents to the BPC, including by appearing before it and answering questions if the BPC reasonably believes that a person is capable of providing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of building legislation.

Subclauses 249(3) and 250(5) provide that a person is not excused from answering a question, providing information or producing or permitting the inspection of a document on the ground that the answer, information or document may tend to incriminate or expose them to a penalty. Therefore, these provisions would engage the right in section 25(2)(k) not to be compelled to testify against oneself.

Right to protection against self-incrimination

The privilege against self-incrimination generally covers the compulsion of any information or documents which might incriminate a person. While it is generally accepted that the privilege does not extend to producing pre-existing documents (particularly documents required to be produced to demonstrate compliance with a regulatory scheme), the right affords strong protection against the compulsion of oral testimony or documents that are required to be brought into existence to comply with an information request. Therefore, to the extent that these provisions compel persons to answer questions and produce new documents that may incriminate the person with respect to certain offences under building legislation, they would limit the privilege against self-incrimination.

The primary purpose of this abrogation is to enable the BPC to monitor compliance with building legislation and investigate potential contraventions. Taking into account the protective purpose of the Bill, there is significant public interest in ensuring that the BPC is able to access information and evidence that may be difficult or impossible to ascertain by alternative evidentiary means, and to use such evidence to bring enforcement action where appropriate.

The information and documents that the BPC can require are those necessary for the purpose of monitoring and enforcing compliance with building legislation. Therefore, any limitation on the right in section 25(2)(k) that is occasioned by the abrogation of the privilege is thus directly related to the Bill’s purpose.

Further, the Bill provides for ‘use immunity’ that restricts the use of information and documents to particular proceedings, such that the abrogation of this privilege is limited. Clauses 249(4) and 250(6) provide respectively that an answer given by the person and any information provided or document produced by the person in compliance with a notice under this section are not admissible in evidence against them in any proceeding other than a proceeding under that section, or in respect of clause 250(6), that any answer given or information provided could not be used in any criminal proceeding against the person other than a proceeding under that section . Accordingly, any limitation on the right to protection against self-incrimination is appropriately tailored and the least restrictive means to achieve the regulatory purpose.

Therefore, I consider there are no less restrictive means available to achieve the purpose of the provisions. For the above reasons, I consider that to the extent that these provisions may impose a limitation on the right against self-incrimination, that limitation is reasonable and justified under section 7(2) of the Charter.

Expansion of definitions of authorised persons

Clauses 239 to 242 expand the list of persons who are authorised persons for the purposes of exercising all or any powers conferred under Chapter 6 of the Bill. The effect of these amendments is to expand the pool of persons who are authorised to exercise various compulsive powers under the Bill, potentially increasing the frequency and scale at which interferences with human rights may occur. As the sections authorise entry, search and seizure powers, these provisions engage the rights to privacy and property. Notwithstanding that the powers can be exercised by a broader cohort of persons, these powers must still be exercised in accordance with the safeguarding provisions discussed below, pursuant to the authorisation conditions specified in clauses 239 to 242, and subject to identification documentation and production requirements (clauses 243 and 244). Importantly, a specified person may only authorise another person to exercise such powers if they are satisfied the person is appropriately qualified or has successfully completed appropriate training. Accordingly, for these reasons I consider these amendments to be compatible with the Charter.

Powers of entry, search and seizure

Divisions 3 to 5 of Part 6.3 of the Bill introduce a suite of powers that enable authorised persons to enter, inspect and search buildings and land, and to seize any document or thing after entry. Clause 238 provides that Part 6.3 of the Bill applies to a caravan or vessel as if these are a building and the occupant of the caravan or vessel is its occupier, granting additional powers of certain BPC-appointed inspectors to enter and inspect a caravan or vessel.

These powers provide a hierarchy of options that scale in the extent of their interference with rights:

•   at the lower end of the scale are powers to enter a building or land for the purpose of carrying out any inspection authorised by building legislation with the consent of the occupier (Division 3);

•   at the medium end of the scale are powers to enter a building or land without consent if it is open to the public, the safety of the public or the occupants of the building or land is at risk, or an emergency order applies (Division 4);

•   at the higher end are powers to enter a building or land used for residential purposes, which can only be exercised pursuant to a search warrant (Division 5).

Where an authorised person enters a building or land, they may exercise the powers specified in these clauses and Division 6. These powers differ, depending on the basis on which entry is authorised, but broadly include powers to search the building or land; inspect or require the production of certain documents; photograph, copy or take an extract from documents; take or keep samples of any thing; conduct destructive testing of a building product or material; and seize any document, equipment, or other thing in certain circumstances. Clause 238(2) grants BPC-appointed inspectors further powers of inspection and testing over plumbing work, including powers to isolate land or building from water or gas supply and dismantle plumbing work. Warrants can be issued where a magistrate is satisfied by evidence that:

•   entry is necessary:

• to determine whether a building, or building or plumbing work complies with building legislation;

• to assist in the enforcement of the safety of buildings and of building and plumbing standards under building legislation,

and that entry is appropriate in all the circumstances (clause 273(1)–(2));

•   there are reasonable grounds to suspect that:

• in the next 72 hours, in or on the building or land, there is, or may be a thing (of a particular kind), connected with a contravention of building legislation (clause 274(2)(a)); or

• information in digital or electronic format connected with a contravention of building legislation that is accessible from the building or land (clause 274(2)(b));

•   it is necessary for the effective monitoring of compliance with clause 279(5) where a thing is subject to an embargo notice in or on a building or land.

Where entry is authorised by warrant, an authorised person may also seize things not mentioned in the warrant if they believe on reasonable grounds that the thing is of a kind which could have been included in the search warrant and will afford evidence about a contravention of building legislation, or that it is necessary to seize that thing in order to prevent its concealment, loss or destruction or its use in the contravention of building legislation (clause 275).

Right to privacy

These powers engage the right to privacy in section 13 of the Charter, which protects against unlawful and arbitrary interferences with a person’s privacy or correspondence. To the extent that the building, land, caravans and vessels are a person’s residence, these expanded entry and inspection powers are likely to engage the right to privacy. Privacy is a right of considerable breadth and relevantly protects a person’s ‘home’, which includes a person’s place of residence. As a person has an increased expectation of privacy in relation to their private residence, this provision has the potential to empower a significant interference with privacy in particular circumstances.

However, in my view, this power is precisely prescribed, aimed at achieving a legitimate objective and equipped with sufficient safeguards to ensure it is not arbitrary.

First, the provisions are necessary to ensure that inspectors have the means to carry out any inspection authorised or required by building legislation, determine compliance with building legislation or assist in the enforcement of the safety of buildings and of building and plumbing standards.

Second, a number of safeguards apply to the exercise of such powers to ensure they are not exercised arbitrarily or unlawfully. In particular:

•   in relation to entry for inspections, authorised persons may not enter any part of a building used for residential purposes unless with the written consent of the occupier at an agreed time (clause 264(2)), or for the purpose of inspecting (at a reasonable time) work that is being carried out under a building permit (clause 264(3));

•   in relation to entry for monitoring, powers to enter a building or land (other than those used for residential purposes) must be exercised during normal business hours, when a business conducted at the building or land is operating, or when building work or plumbing work is being carried out, unless the occupier of the building or land consents otherwise (clause 266(6));

•   authorised persons may only exercise entry powers with consent (other than under a warrant) for the purpose of monitoring compliance with building legislation or for the purposes of determining whether building legislation is being complied with or assisting in the enforcement of the safety of buildings and of building and plumbing standards (clauses 266(1));

•   when consent is required to exercise a power, authorised persons must inform the occupier of the purpose of the entry and search and explain certain matters including the person’s right to refuse consent, and seek a signed acknowledgment of consent (clauses 267 and 268);

•   for entry without consent or warrant, authorised persons must only enter if the building or land is open to the public, the safety of the public or the occupants of the building or land is at risk, or an emergency order applies (clauses 270 and 271);

•   authorised persons must comply with retention and return limits in accordance with clause 288 for anything seized under Part 6.3 or under a search warrant; and

•   when exercising powers of entry under a warrant, authorised persons must generally announce that they are authorised by warrant, and provide a copy of the warrant to the occupier (if present) (clauses 277 and 278).

As such, a broad range of safeguards apply to ensure the powers may only be exercised in a reasonable and proportionate way that protects the privacy of individuals as much as possible. The powers serve the important purpose of enabling authorised persons to effectively monitor and enforce compliance with building legislation. The powers are appropriately tailored to reflect the source of the authority to enter a building or land and exercise associated powers, with the most intrusive powers being reserved to circumstances where a magistrate has granted a warrant.

Accordingly, I consider that the interference is neither unlawful nor arbitrary and is therefore compatible with the right to privacy in section 13 of the Charter.

Right to property

While property is not defined under the Charter, it is likely to include personal property interests recognised under general law. While entry for inspection purposes may, in certain circumstances, affect an occupier’s use or enjoyment of their property, the nature and extent of such interference would be at the low end of the spectrum. The seizure powers which authorise the removal of anything found on the premises will engage property rights under section 20 of the Charter. Additionally, the authorising actions such as the demolition of or cutting into building work (if specified conditions are met), will engage the right to property.

However, the provisions empowering the seizure of any document, equipment, or other thing do not limit property rights, as any interference with property occasioned by these provisions would be undertaken in accordance with the provisions of the Bill, which are accessible, clear and sufficiently precise. For example, an authorised person may only seize anything in or on the building or land if they consider it necessary for the monitoring or enforcement purposes (clause 266) and must provide a receipt for the thing seized as soon as practicable (clause 286). Further, equipment not be seized or operated unless the authorised person believes on reasonable grounds that the operation can be carried out without damage to the equipment. As these actions must only be undertaken if reasonably required to facilitate the inspection or where an authorised person reasonably believes the thing is connected with a contravention of building legislation, any deprivation of property is reasonably necessary to achieve the important objective of ensuring compliance with building legislation.

Under a search warrant, the power to seize anything not named in the warrant is subject to various conditions: specifically, an authorised person must believe on reasonable grounds that the seized thing is of a kind which could have been included in a warrant, will afford evidence of an offence and is necessary to seize to prevent its concealment, loss or destruction or its use in the commission of that offence (clause 275). Further, any deprivation of property is reasonably necessary to achieve the important objective of ensuring and enforcing compliance with building legislation.

Therefore, any deprivation of property will be ‘in accordance with law’ and will therefore not limit the Charter right to property.

Right of owner and owners corporation to carry out required work

Clause 304 provides that the owner of a building or land may apply to the Magistrates’ Court for an order requiring the occupier to permit the owner (and any other person) to enter the building or land and carry out the work or do any other thing required under building legislation.

Clause 306 empowers an owners corporation to authorise a person to enter a lot or a building on a lot on its behalf to carry out works in accordance with an order or notice under building legislation requiring the conduct of building, protection, plumbing or other work in relation to that lot.

Clause 307 provides that the BPC or a council may apply to the Magistrates’ Court for a warrant if a person refuses to vacate a building or land when required to do so by order under the Bill. A warrant under this clause authorises an authorised person to enter the building or land (by force if necessary) and with such assistance as is necessary, to compel all persons for the time being occupying the building or land to vacate that building or land.

Privacy and property rights

To the extent that the building, land or lot is used for residential purposes, it may engage the right to privacy, which relevantly protects a person’s ‘home’ and includes a person’s place of residence. Therefore, powers to enter a building, land or lot are likely to constitute a prima facie interference with privacy. While a person would have a lower expectation of privacy in respect of entry onto the land, they would have a higher expectation in respect of entry into a building which is used as a private residence, such that the interference would be greater.

The provision also relates to a person’s property interest, which includes contractual rights, specifically the right to temporary possession by reason of a tenancy agreement. Further, powers of entry for the purpose of undertaking works may amount to a deprivation of property if they substantially restrict a person’s exclusive possession, use or enjoyment of their property, particularly if such works are prolonged or pose a significant interference with a person’s ability to use and enjoy the building, land or lot. Similarly, powers to compel all persons occupying a building or land to vacate will clearly constitute a substantial restriction.

However, I consider that any interferences with these rights would be neither unlawful or arbitrary and would be ‘in accordance with the law’. This is because powers are subject to strict safeguards. For example, an application under clause 304 can only be made if the occupier of the building or land does not comply with a notice after 7 days of it being provided. Further, these powers are for an important purpose of enabling the conduct of works that are required by law to be carried out. As such, they are aimed at ensuring the safety and compliance of the building and land, thereby protecting the safety of the occupier, other land users and the general public.

Recovery of expenses for mandatory works

Clause 305 provides that if an owner of a building or land does not carry out works mandated by building legislation, an occupier or any registered mortgagee of the land is entitled to recover any expenses necessarily incurred from carrying out those works from the owner as a debt due to the occupier or mortgagee, deduct those expenses from or set them off against any rent or add the amount to the principal sum owing under the mortgage (as the case may be).

Clause 306(6) allows an owners corporation to recover from an owner of a lot affected by an owners corporation as a debt due to the owners corporation the cost of any work carried out under clause 306(3) that is not covered by the insurance held by the owners corporation.

Right to property

‘Property’ under the Charter includes all real property interests recognised under the general law, relevantly including debts. Accordingly, this right may be engaged by the provision allowing the recovery of any expenses as a debt owed by the owner.

However, the right to property will only be limited where a person is deprived of property ‘other than in accordance with the law’, where the law is not publicly accessible, clear and certain, or operates arbitrarily. In this instance, the interference will not be arbitrary, but governed by a clear and accessible process set out in the Bill and subject to reasonable conditions. For example, clause 305(3) prohibits an occupier from recovering any expenses incurred by the carrying out, in respect of an essential safety measure, certain repairs, maintenance work or installations referred to in the Retail Leases Act 2003, if the occupier has agreed to bear the expenses under certain retail premises leases. Further, clauses 305(4)(b)–(5) require a registered mortgagee to give written notice of expenses to the mortgagor prior to them being added to the principal sum owing under the mortgage.

Therefore, I am satisfied that the right to property is not limited by these amendments.

Embargo notices

Clause 279 empowers an authorised person executing a search warrant issued under clause 274(2) authorising the seizure of any thing, to issue an embargo notice if the thing cannot (readily) be physically seized and removed. The notice would prohibit a person from undertaking such actions as selling, leasing, transferring or otherwise dealing with the thing or any part of it.

Right to property

‘Property’ under the Charter includes personal property interests and property rights characteristically entail the right to use, control, transfer, dispose and exclude. Accordingly, clause 279 is a form of ‘de facto dispossession’, where despite retaining formal ownership, the person is temporarily prevented from exercising various rights such as selling, renting or gifting the property. It also deems any sale, lease or transfer of the thing, carried out in contravention of the embargo, to be void. This provision may thus amount to a ‘deprivation’ of property so as to interfere with a person’s property interest.

However, I consider that any interference occasioned by section 279 would be in accordance with the law. It ensures a thing that was otherwise required to be seized in accordance with the Bill, is not dealt with in a way that would frustrate the purpose of the seizure, akin to comparative provisions preventing the destruction of evidence. Further, it contains appropriate safeguards such as excusing a person from liability if they contravene an embargo for the purpose of protecting and preserving the thing.

Liability of officers of bodies corporate

Division 3 of Part 6.5 of the Bill extends liability for certain offences committed by a body corporate to the officers of that body corporate where the officer authorised or permitted the commission of the offence by the body corporate, or was knowingly concerned in any way in the commission of the relevant offence by the body corporate or where the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate (clauses 312, 313, and 314). Similarly, clause 352(3) provides that if a body corporate is found to have failed to comply with an enforceable undertaking, each officer of the body corporate is taken to have failed to comply with the undertaking if the officer knowingly authorised or permitted the failure.

Subclause 314(3) additionally introduces a reverse onus defence that requires an officer of a body corporate to prove that they exercised due diligence to prevent the commission of an offence by the body corporate as a defence to a charge for an offence against a list of provisions specified in clause 314(2).

Presumption of innocence

These provisions are relevant to the presumption of innocence as they may operate to deem as ‘fact’ that an individual has committed an offence based on the actions of another body, based on their association with that body. I consider these three clauses to be consistent with this right for the following reasons.

Clause 312 does not engage the presumption of innocence as the prosecution is required to prove the accessorial elements of the offences. That is, that the relevant person authorised or was knowingly concerned with the commission of the offence. This requires proof, beyond reasonable doubt, that the individual knew the essential facts that constitute the offence and, through their own acts or omissions, was a participant in that offence. Clause 312 is broadly consistent with existing common law principles of accessorial liability.

Clause 313 goes beyond the normal principles of accessorial liability by allowing a director to be held liable for a failure to exercise due diligence. This also does not limit the presumption of innocence as the burden of proof lies on the prosecution to adduce each element of the offence beyond reasonable doubt, being the failure to take reasonable steps. The director is presumed to be innocent unless the prosecution can prove otherwise. In the alternative, to the degree that the right is still considered to be limited, due to the fact that a director who is proven to have failed to exercise due diligence is deemed guilty of the underlying offending without needing to prove the elements of the underlying offence, I consider any limit to be reasonably justified.

There is a strong need to ensure adequate deterrence of regulatory offences arising from the failure to meet minimum standards of safety in the building and plumbing industries. The Supreme Court, as well as comparative approaches in other jurisdictions, have held that the presumption of innocence may be subject to reasonable limits in the context of regulatory compliance, particularly where such standards are necessary to protect third parties who may not have the capacity to protect themselves (in this case, consumers). These provisions only target persons who have elected to undertake a position as an officer of a body corporate, which includes assuming the responsibilities and duties that apply to these roles, and who have the capacity to influence the conduct of the entity concerned. Clause 313 specifies the offences and subject matter to which a director assumes responsibilities in relation to ensuring due diligence.

The provisions ensure that such persons are appropriately held responsible for breaches that occur by or on behalf of the entity over which they have responsibility, enabling offences to be successfully prosecuted and operate as an effective deterrent. Affected persons should be well aware of the regulatory requirements and, as such, should have the necessary processes and systems in place to effectively meet these requirements and not incur accessorial liability. Additionally, the provision is appropriately tailored to allow a court to enquire into the individual circumstances of a director’s culpability. In determining whether an officer failed to exercise due diligence, a court may have regard to such matters as what the officer knew, or ought reasonably to have known, about the commission of the offence by the body corporate, whether or not the officer was in a position to influence the body corporate in relation to the commission of the offence by the body corporate, and what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate (clauses 313(3)). Finally, in contrast to the accessorial liability clause which applies to a broad range of offences under the Act, clause 313 only applies to a small and appropriately targeted category of offences, including offences related to obtaining appropriate insurance for the benefit of the consumers of building work and offences relating to not making consumers pay more than a lawful deposit or progress payment amounts for a domestic building contract.

In my view, there is no less restrictive way of ensuring accountability of officers of bodies corporate for breaching the provisions of the proposed Act.

Turning to clause 314, I accept that this clause will limit the right to the presumption of innocence, as it shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish that they are not guilty of an offence. Clause 314(3) requires an officer of a body corporate to prove that they exercised due diligence to prevent the commission of an offence by the body corporate as a defence to a charge for an offence against specified provisions, rather than merely requiring the raising of evidence capable of supporting the defence. As this provision provides the officer with a statutory defence that can only be made out if they prove due diligence, the statute will shift the legal burden, not merely the evidentiary burden.

However, as noted above, the presumption of innocence may be subject to reasonable limits in the context of regulatory compliance, particularly where regulatory offences may cause harm to the public. The underlying offences subject to this provision are serious offences that go to fundamental requirements in building legislation, intended to protect the public from safety concerns and consumers from significant financial harm.

For example, a number of applicable offences pertain to unregistered building work, where requiring those undertaking building work to be registered is fundamental to the effectiveness of the building regulatory regime and consumer and public protection. Unregistered work creates significant risks to the health and safety of building occupants and the public because it both lacks initial quality control at the point of industry entry and subsequent oversight by regulators of the building work produced. Illness, injury or death may result from unregistered work if, for example, non-compliance with fire safety standards does not come to the attention of building surveyors, inspectors, or the BPC.

As registration is fundamental to the lawful operation of building companies, all directors in the building industry should have a basic understanding of registration requirements and turn their minds to compliance with those requirements. It is therefore appropriate that where an offence relates to registration, a director should bear the burden of proving that they exercised due diligence in relation to this core area of corporate compliance. Directors will also be on notice that they will be required to prove that they exercised due diligence to the legal standard, and that they will need to employ necessary processes and keeping of records to be able to satisfy this burden. I therefore consider that the reversal of the legal burden to be a reasonably necessary and proportionate response to address public safety and consumer harm risks due to the negligent conduct by officers in the building industry.

Further, the purpose of shifting the burden of proof is to provide the accused with an opportunity to avoid liability in circumstances where they were not at fault, without undermining the ability to enforce compliance with the law. Whether or how an officer exercised due diligence is peculiarly within the knowledge of the officer (e.g. access to evidence) such that they are best placed to prove the due diligence defence. Accordingly, this defence provision is necessary to ensure the effective administration of the regulatory scheme.

As such, I conclude that the right to be presumed innocent in section 25(1) of the Charter is not limited by this Bill.

Ineligibility for registration

Part 6.10 of the Bill provide that if a court makes a civil penalty order against a person, or the person is found guilty of an offence against building legislation, it may make various orders including that specified licenses or registrations under the Building Act be cancelled, and that a person not be eligible to hold specified licenses or be registered under the Building Act (in essence, a disqualification order). Similar orders concerning the cancellation of, and disqualification from eligibility for, registration, may be made in relation to a body corporate.

Right not to be punished more than once

As such orders follow a finding of guilt or a contravention of a civil penalty, I do not consider that they constitute double punishment in the sense that the orders are part of the same proceeding and are considered to be consequences that follow the finding of guilt or contravention of a civil penalty. In other words, they have the characteristic of auxiliary orders made at the same time as the primary sentence.

Secondly, the purpose of the orders is not punitive but serves to exclude persons with a history of contraventions from being able to continue to participate in the building sector, for the safety of consumers.

Finally, these orders are to be taken into account at sentencing under the principle of totality, which concerns the combined effect of a sentence and any auxiliary order to ensure it is not disproportionate to the offence.

Infringement notices and injunctions

Part 6.6 of the Bill provides for a regime where an authorised building and plumbing officer, including an BPC-appointed inspector, the chief executive officer or a municipal building surveyor, may serve an infringement notice on any person in certain circumstances (clause 326). Infringement notices must include the details required under section 13 of the Infringements Act 2006 and the details of any additional steps required to expiate the offence (clause 326(4)). Additional steps required to expiate a building and plumbing infringement offence may include carrying out any work if failure to carry out the work constitutes the offence, stopping any work that constitutes the offence, or doing or failing to do a specified thing for the purposes of remedying a contravention of building legislation (clause 327).

Clause 328 applies if an infringement notice requires additional steps to be taken to expiate an offence and the person served with the notice informs the authorised building and plumbing officer that those steps have been taken either before the end of the period for payment specified in the notice or if the officer allows and the person has not been charged with the offence, at a later time. In this instance, the authorised building and plumbing officer must find out whether or not those steps have been taken and serve on the person a notice stating whether or not those steps have been taken. Clause 328(3) provides that a statement that additional steps have been taken is for all purposes conclusive proof of that fact.

Part 6.9 of the Bill provides for a regime where a court may grant an injunction in any terms that it considers appropriate if it is satisfied that a person has engaged, or is proposing to engage, in various conduct that relates to the contravention of building legislation. Clause 356(6) specifically empowers the court to grant an injunction requiring a person to carry out specified building work, plumbing work or other specified work.

Freedom from forced work

Clauses 327(a) may engage the right to freedom from forced work by requiring a person subject to an infringement notice under clause 326 to undertake additional steps to expiate a building and plumbing infringement offence, specifically to carry out any work if failure to do so constitutes the offence. Similarly, clause 356(6) would engage this right.

As outlined above, ‘forced or compulsory labour’ relevantly does not include work that forms part of normal civil obligations, which is work provided for by law, imposed for a legitimate purpose, and not exceptional or having a punitive purpose or effect. This would include obligations to undertake work in order to ensure compliance with regulatory standards, particularly where those standards are to protect against risks to persons whose safety is reliant on the compliance of others.

I am of the view that, if the right is engaged, work required to be carried out under an infringement notice issued under clause 326 or an injunction granted under clause 356 would form part of normal civil obligations and would, therefore, not constitute a limit on the right. A notice requiring that certain additional steps be undertaken will be confined in its impact, in that the notice must only be issued where the issuing officer has a reason to believe that the person has committed a building and plumbing infringement offence. As discussed above, the Bill protects the public by ensuring that specific actions are undertaken in order to support compliance, and thus improve outcomes for consumers in the building industry. The work is not being directed for any punitive purpose.

Additionally, for example, an infringement notice issued under clause 326 will be subject to the requirements in section 13 of the Infringements Act 2006, such that it must be in writing and state that the person is entitled to elect to have the matter of the infringement offence heard and determined in the Court. Given this, the person may make submissions to the Court about the matter before carrying out any required work (clause ‍326(2)).

For these reasons, I do not consider that the freedom from forced or compulsory labour will be limited by this Bill.

Civil penalty orders

Part 6.7 provides the circumstances in which the BPC may apply to a court for a civil penalty order. Clause 330 outlines the factors the court may have regard to in determining a civil penalty amount, including whether the person has previously engaged in conduct that constitutes a contravention of a civil penalty provision.

Clause 332 provides that a court must not issue a civil penalty order against a person if the person has contravened a civil penalty provision and has been found guilty of an offence constituted by conduct that is substantially the same. Clause 333 provides that a proceeding for the making of a civil penalty order is stayed if a criminal proceeding is or has commenced against the person and is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention. If the person is found not guilty then the civil penalty proceeding may be resumed or if they are found guilty then the proceeding for the civil penalty order is dismissed (clause 333(2)). Clause 334 provides that a criminal proceeding may be commenced against a person for conduct that is substantially the same as conduct constituting the contravention of the civil penalty provision regardless of whether a civil penalty order has been made against the person. Further, information given and documents produced by an individual in a civil penalty proceeding are not admissible in evidence in a criminal proceeding for an offence constituted by conduct that is substantially the same (clause 335).

The right not to be punished more than once for the same offence

As discussed above, section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which they have already been finally convicted or acquitted in accordance with law. Relevant to the concept of punishment it may be suggested that the section 24 right to have a criminal charge decided by a court implies a principle that a person may only be punished as a result of a charge being proven in a criminal proceeding.

In my view, Part 6.7 broadly promotes the right not to be punished more than once for the same offence by ensuring that a court must not make any civil penalty order against a person if the person who contravened a civil penalty provision has been convicted of an offence constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention of a civil penalty provision (clause 332). Further, proceedings that have been commenced against a person for a contravention of a civil penalty provision listed under building legislation are stayed if criminal proceedings are commenced or have already been commenced against the person for an offence, and the offence is constituted by conduct that is the same or substantially the same as the conduct alleged to constitute a contravention of the civil penalty provision (clause 333). These provisions seek to protect against concurrent civil and criminal proceedings for conduct that is substantially the same. However, if a person is not convicted of the criminal offence, clause ‍333(2) provides that civil penalty proceedings may be resumed. In my view, these sections promote the right not to be punished more than once for conduct that is substantially the same.

Clause 334 provides that criminal proceedings may be commenced after a proceeding for a civil penalty order regardless of whether a civil penalty order has been made against the person. The civil penalty regime in the Bill may interfere with a person’s right not to be punished more than once given the proposed parallel operation of the civil penalty regime with the criminal law. The new civil penalty regime is intended to provide the BPC with the capacity to respond appropriately to corporate wrongdoing and the most egregious contraventions of building legislation and thus, to deter further contraventions. The regime establishes that a person cannot be given a civil penalty order if a person has been convicted of an offence constituting the same conduct.

Clause 334 enables criminal proceedings to be brought against a person regardless of whether a civil penalty order has been made for conduct that is substantially the same as the conduct constituting the offence. Accordingly, a person may receive a civil penalty and then have a subsequent criminal sanction imposed upon a conviction for the same conduct. This is relevant to the protection against double punishment in section 26 of the Charter. Whether the right is limited in this context will depend on whether the civil penalty is of such nature and magnitude to constitute truly penal consequences.

In my view, the civil penalties in this Bill for breaching the relevant provisions would not be considered to be punitive, or in effect, criminal sanctions. Although some of the maximum pecuniary penalties are up to 3000 penalty units for a natural person (clause 331), the purpose of the civil penalties is to encourage regulatory compliance and deter further contraventions, particularly for conduct that has the capacity to cause serious harm. A civil penalty order will be enforceable as a judgment debt and a person will not be liable to be imprisoned for a failure to discharge the debt.

While I do not consider that clause 331 limits or engages section 26 of the Charter, to the extent that right may be limited if a court should consider that the larger civil penalties do constitute punishment, I am of the view that the limit is reasonable and justified in the circumstances.

In relation to clause 334, this approach mirrors the ‘pyramid of sanctions’ model of enforcement employed by comparative regulatory schemes in other jurisdictions. This model is predicated on findings that implementing a bar against the use of both criminal and civil proceedings can undermine effective enforcement. Civil penalty proceedings can be more efficient in enforcing a regulatory scheme and deterring misconduct due to the lower burden of proof, streamlined procedure, availability of negotiated settlements and lower costs. However, civil penalties alone can be an insufficient deterrent in relation to the more serious and harmful misconduct which warrant criminal punishment. Criminal sanctions are directed at appropriate punishment and serve as a greater deterrent. A criminal conviction poses much more reputational risks for a defendant, with negative publicity and stigma potentially arising from a conviction far outweighing the label attached to an adverse decision in civil proceedings and/or the making of civil penalty orders. The availability to commence criminal proceedings following a civil penalty contravention is an important part of the pyramidal structure of enforcement of sanctions for more serious cases, while still providing for effective and efficient deterrence.

The Bill implements sufficient safeguards to protect criminal process rights, including deeming any information and documents produced by an individual in a proceeding for a civil penalty order against the individual as inadmissible in a criminal proceeding concerning substantially the same conduct (clause 335). Further, the Bill does not interfere with existing sentencing discretions, including a sentencing judge’s consideration of the principle of totality and rule against double punishment in relation to imposing a criminal sanction for substantially the same conduct already subject to a civil contravention order.

Accordingly, I consider that clause 334 of the Bill is compatible with the right not to be tried or punished more than once in section 26 of the Charter.

Improvement notices

Clause 345 provides that a person on whom an improvement notice is served must comply with the notice within the period specified in the notice unless they have a reasonable excuse.

Right to be presumed innocent (section 25(1))

Section 25(1) of the Charter is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

This reverse onus offence provision, which places an evidential burden on the accused, may engage the right to the presumption of innocence. In other words, the accused is required to present or point to evidence that suggests a reasonable possibility of the existence of facts that would establish the exception or excuse.

As clause 345 is a summary offence, section 72 of the Criminal Procedure Act 2009 will apply to require an accused who wishes to rely on having a reasonable excuse to present or point to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish the exception. In other words, the provision imposes an evidential onus on an accused when seeking to rely on the defence.

However, the Supreme Court has held that evidential onus provisions on an accused to establish an exception does not transfer the legal burden of proof and does not limit the right to the presumption of innocence. Once the accused has pointed to evidence of a reasonable excuse, the burden shifts back to the prosecution who must prove the essential elements of the offence to a legal standard. Further, the exceptions relate to matters which are particularly within an accused’s knowledge and would be unduly onerous for a prosecution to disprove at first instance.

Accordingly, I am of the view that these offence provisions are compatible with the Charter.

Enforceable undertaking registers

Clause 354 requires the BPC to maintain a register of all enforceable undertakings; and register each enforceable undertaking in the register. The register relevantly must include such personal information such as the name and address of the person who gave the enforceable undertaking. Clause 354(4) provides that the register must be made available for inspection by any person upon request.

Clause 355 provides that the BPC must maintain a public register of enforceable undertakings given by various entities including developers or a person who is in the business of building or plumbing The BPC must publish the register on the BPC’s Internet site.

Right to privacy

The establishment of the registers – and the holding of the personal information of persons in the register referred to in clause 354 – engages the right to privacy. The publication requirement in respect of the register maintained under clause 355 may also engage the right to privacy.

However, any impacts on the right to privacy are not unlawful or arbitrary. The personal information to be included in the register is clearly stipulated in the legislation and primarily limited to basic personal information (e.g., does not include criminal records). The public register does not contain any sensitive personal information and publication is necessary to alert consumers and industry members to wrongdoing by the regulated entity who provided the undertaking, to promote accountability, and ensure transparency of the BPC’s enforcement decision-making.

Accordingly, any impacts on the right to privacy are appropriate and proportionate to the legitimate aim of protecting consumers, ensuring transparency and accountability in the building industry. I therefore consider that the register established by the Bill is compatible with the privacy right in section 13 of the Charter.

Other remedies: injunctions and prohibition notices

Clause 356(6) empowers the court to grant an injunction requiring a person to: carry out or arrange for the testing, including the destructive testing, of a building product or material used in the construction of a building; transfer property; and destroy or dispose of goods that have been or may be used in carrying out building or plumbing work.

Clause 356(5) empowers the court to grant an order restraining a person from carrying on a business as a building practitioner or a plumber or supplying goods or services used in building work or plumbing work (whether or not as part of, or incidental to, the carrying on of another business) for a specified period or except on specified terms and conditions.

Clause 362 empowers the court to make a prohibition order, on an application by the BPC, of various actions such as making of a payment by another person in discharge of a debt owed to the person or their associate; parting with possession of, or transferring or encumbering, any of the person’s money or other property; another person who is holding money or other property on behalf of the person or their associate from transferring or encumbering all or any of the property to the person or the person’s associate. An order under clause 362 may be expressed to operate for a period specified or until a proceeding under another provision of building legislation in relation to which the order was made has been concluded. An order under clause ‍362 made on an ex parte basis cannot operate for a period of more than 30 days.

Property rights

As outlined above, ‘property’ under the Charter includes all real and personal property interests and property rights characteristically entail the right to use, control, transfer, dispose and exclude. As the above provisions authorise such actions as the destruction or disposal of building products or materials or goods and dealings with property, it will constitute a substantial restriction to a person’s use or enjoyment of their property, such that the interference could amount to a ‘deprivation’ of property.

However, this right is not limited where a law that authorises a deprivation of property is adequately accessible, clear and certain, and sufficiently precise to enable a person to regulate their conduct. For example, it is subject to judicial oversight, where the court may only grant an injunction if it is satisfied that certain specified conditions related to the contravention of building legislation, a condition of any licence or registration under building legislation, or a notice, permit, direction, order or determination issued or made under building legislation.

A prohibition order that may be made under clause 362 potentially interferes with property. In my opinion, the right to property is not limited by these provisions, as any deprivation of property will only result from adherence to the sufficiently certain and circumscribed provisions, only following an application to a court, and only for a specified period (section 362(2)). If an application is made on an ex parte basis then it cannot operate for more than 30 days. This requirement confines any interference with property in circumstances where the person whose property may be affected by the order is not provided with advance notice of the application for an order.

As any deprivation of property which occurs as a result of the operation of section 362 will occur by way of a court order, it will be in accordance with law. Further, any deprivation of property is reasonably necessary to achieve the important objective of ensuring compliance with building legislation.

Therefore, I consider that any deprivation will be in accordance with the law such that the right to property is not limited.

Right to privacy

Although the Charter does not include an express ‘right to work’, there is case law which suggests that the right to privacy may include ‘a right to work of some kind’ where there is a sufficient impact upon the personal relationships of an individual or on their capacity to experience a private life, for example by curtailing their ability to earn a living and maintain their identity through employment.

It is possible that an injunction under clause 356(5) restraining a person from carrying on a business as a building practitioner or a plumber or supplying goods or services used in building work or plumbing work may significantly curtail their ability to earn a living and maintain their identity through employment. Accordingly, on a broad reading, the right to privacy may be engaged by this provision. However, for the right to be limited, any interference must be unlawful and arbitrary. The question of arbitrariness depends upon the proportionality of any interference with privacy.

In my view, any impacts on the right to privacy are not unlawful or arbitrary. This is so because the injunction power is subject to a range of safeguards, such that any limits on rights are precise and carefully circumscribed. As outlined above in the property discussion, an injunction can only be made by the court if it is satisfied that certain specified conditions related to the contravention of legislation, a condition of any licence or registration, or notice, permit, direction, order or determination. Accordingly, any deprivation of privacy is reasonably necessary to achieve the important objective of ensuring compliance with building legislation.

Therefore, these provisions are aimed at ensuring that only suitable people are permitted to work in the industry, which serves a legitimate and important protective purpose. The power to restrain employment due to a person’s failure to comply with the law is an important regulatory function that protects the integrity and safety of the industry.

Accordingly, I consider that any interference arising from the injunction provision would not be arbitrary.

Adverse publicity orders

Clause 367 of the Bill provides the court with the power to make an adverse publicity order if a person is found guilty of an offence or to have contravened a civil penalty provision.

If the court finds a person guilty of an offence against the building legislation or finds that a person has contravened a civil penalty provision, the court may, on application by the BPC, make an order requiring the person to do all or any of the following within the period specified in the order: disclose specified information to which the person has access to a specified person and in a specified way; or publish an advertisement at the person’s expense in terms specified or determined in accordance with the order and in a specified way. The court may make an adverse publicity order in addition to imposing a penalty or making any other order the court may make in relation to the offence or contravention of the civil penalty provision.

An adverse publicity order serves the important purpose of seeking to promote accountability by preventing a person from concealing that they have been found guilty of an offence or found to have contravened a civil penalty provision and have been subject to a penalty. The purpose of the order is to deter future breaches and promote consumer awareness of the offender or contravener. This helps to create better outcomes for consumers, who will be made aware of the previous conduct of persons who have contravened the building legislation who they may be considering engaging related to the provision of services in their homes or businesses. The risk of an adverse publicity order and the resulting damage to a person’s reputation may create a greater deterrence than a monetary penalty, which will in turn encourage greater compliance with the building legislation.

Right to privacy and reputation

This power engages the right to not have a person’s privacy unlawfully or arbitrarily interfered with under section 13(a) of the Charter and the right to not have a person’s reputation unlawfully attacked under section ‍13(b) of the Charter, by a court ordering that a person must make the commission of an offence or contravention of a civil penalty provision known to the public or to a specific person, or both.

I consider it likely that the information that a person will be required to publish under an adverse publicity order will already be in the public domain as a consequence of judicial proceedings held in open court.

In my view, the right not to have a person’s privacy unlawfully or arbitrarily interfered with under section ‍13(a) and the right to not have one’s reputation unlawfully attacked under section 13(b) of the Charter will not be limited, because any interference with a person’s privacy or damage to the person’s reputation will not be unlawful as it will be in accordance with an accessible and precise legislative framework. Further, any interference with a person’s privacy will not be arbitrary as the required disclosure of information serves the legitimate purpose of deterrence and consumer protection.

I am satisfied that the right to privacy and reputation under section 13 of the Charter is not limited by the power for the court to make adverse publicity orders in clause 367.

Right to freedom of expression

The power engages and may limit the right to freedom of expression, because it potentially results in an order that compels a person to publish certain information. To the extent that the right to freedom of expression may be limited, I am satisfied that any such limitation is justified, given the important deterrent and consumer protection purposes that adverse publicity orders serve, as described above.

Disciplinary action against licensed or registered persons

Chapter 7 provides for a framework for the BPC to take disciplinary action against licensed or registered persons (including registered or licensed building practitioners or employees, or licensed or registered plumbers, or endorsed building engineers) in the circumstances set out in that chapter.

Part 7.2 provides for the disciplinary powers of the BPC, including the disciplinary action it can take, and the grounds for disciplinary action in Part 7.3.

Training, rectification or other directions

Clause 374 of the Bill defines ‘disciplinary action’ to include directing a licensed or registered person to do, or not to do, a specified thing, including to rectify or complete specified building or plumbing work (clause ‍374(b)), or requiring the person to complete training (clause 374(c)).

Freedom from forced work

As outlined above, ‘forced or compulsory labour’ under section 11 of the Charter does not include work that forms part of normal civil obligations, being work provided for by law, imposed for a legitimate purpose, and not having a punitive purpose or effect. The action provided for under clause 374(b) and (c) is intended to ensure that building and plumbing work complies with regulatory standards, and that licensed and registered people are appropriately qualified to undertake building and plumbing work. This, in turn, is intended to protect against risks to people from unsafe building and plumbing work and lift professional standards. Accordingly, as this work is provided for by law, imposed for a legitimate protective purpose on people who have voluntarily assumed responsibilities participating in a regulated sector, and do not have a punitive purpose or effect, I do not consider that these provisions engage section 11.

Rights to fair hearing and to not be tried or punished more than once

Clause 374 of the Bill also defines ‘disciplinary action’ to include ordering a licensed or registered person to pay the BPC a penalty (clause 374(d)).

This provision is relevant to the rights to a fair hearing (section 24(1)) and the protection against double punishment (section 26).

Firstly, the right to a fair hearing includes a right to have a criminal charge decided by a competent, independent and impartial court after a fair hearing. Implicit in this right is that a criminal penalty is only imposed on a person following a finding of guilt by a court pursuant to a criminal process. While clause 374 empowers the BPC to order a person to pay the BPC a penalty of penalty units, in my view, this is not to be regarded as a criminal sanction so as to engage this implied right.

The disciplinary action provided for in Chapter 7 could not be characterised as punitive or constituting a criminal proceeding. The Bill describes such proceedings as ‘disciplinary action’ which has a civil connotation. Disciplinary proceedings are brought by application (not by arrest or summons). Proceedings are brought on grounds relating to upholding professional standards, protecting the public and maintain confidence in the building and plumbing sector. The available sanctions are largely preventative and relate to enforcing compliance with building legislation and deterring non-compliance. To the extent that they do include penalty units, these are set at a moderate amount and do not enliven criminal consequences such as a conviction or imprisonment. A disciplinary sanction involving penalty units is a common sanction in regulated sectors.

As this is not a criminal process involving a punitive sanction, it is not relevant to the protection against double punishment in section 26. Nonetheless, I note the Bill still gives effect to this right by way of clause 374(d), which provides that the BPC cannot order a person to pay a penalty if a charge has already been filed in relation to the matter, or if the matter has been dealt with by a court exercising its criminal jurisdiction or by an infringement notice. Additionally, clause 375 permits the BPC to take disciplinary action in relation to an expiated building and plumbing infringement offence under the Infringements Act 2006 (which would involve circumstances where a person has already paid an infringement penalty), but (pursuant to clause 375(2)) cannot impose a further penalty as a disciplinary sanction under clause 374(d).

Accordingly, I am satisfied these provisions are compatible with these rights.

Show cause process

Part 7.5 provides for a show cause process to be initiated if the BPC proposes to take disciplinary action against a person.

Fair hearing

As noted above, a ‘civil proceeding’ under section 24(1) of the Charter is not limited to a proceeding decided by judicial decision-makers; it may encompass the decision-making procedures of administrative decision-makers with the power to determine private rights and interests. The entire decision-making process, including the availability of reviews and appeals, must be examined to determine whether the fair hearing right is limited.

In my view, the show cause process provided for in Part 7.5 promotes section 24(1) of the Charter by affording a licensed or registered person subject to proposed disciplinary action the following procedural fairness safeguards:

•   the BPC must give a show cause notice to the person, stating the proposed disciplinary action, the ground for the action and the facts forming the basis of the ground, and that the person may make written or oral representations to the BPC (clauses 392 and 393);

•   if the BPC ceases to reasonably believe that a ground exists to take disciplinary action, it must give written notice to the person that no further action will be taken in relation to the show cause notice (clause ‍396);

•   if the BPC does reasonably believe that a ground exists, it must give written notice to the person of the decision to take disciplinary action, and include either the reasons for the decision or that the person may request written reasons (clause 398); and

•   if the BPC decides to defer taking the disciplinary action proposed in the show cause notice, it must also give written notice to the person of the decision, including details such as whether any conditions are imposed on the deferral and then give written notice if it decides to then revoke the deferral (clauses 398, 400 and 401).

A licensed or registered person can apply for internal review of a decision of the BPC to take disciplinary action against them (under clause 398), to impose any condition on the deferral of disciplinary action (under clause 399(2)), to revoke a deferral of disciplinary action (under clauses 400 and 401). A person can apply for VCAT review of a decision of the BPC under clause 398 to disqualify them from holding a licence or being registered. Other decisions of the BPC made under clause 398, or decisions made under clauses 399(2), 400 or 401, if the chief executive officer or a commissioner made the decision or was involved in the matters that gave rise to the reviewable decision, are also subject to VCAT review.

Mandatory cancellation and suspension (emergency, interim or immediate) of licence or registration

Fair hearing

As noted above, a ‘civil proceeding’ under section 24(1) of the Charter is not limited to a proceeding decided by judicial decision-makers; it may encompass the decision-making procedures of provided for in Chapter 7 of the Bill, including:

•   the BPC or VCAT must cancel a person’s licence or registration if they make a finding during disciplinary proceedings that the person is not a fit and proper person or does not satisfy one or more of the matters set out in section 377(2): clause 381(1) of the Bill (mandatory cancellation);

•   before taking any disciplinary action, the BPC may suspend a person’s licence or registration if the BPC reasonably believes that a ground for disciplinary action exists and suspension is in the interests of the public, including having regard to any risks to neighbouring properties, people’s health and safety, and consumers: clause 382(1) of the Bill (emergency suspension);

•   if the BPC reasonably believes that a person has contravened prescribed provisions in building legislation or prescribed provisions in any other Act, the BPC may (and in certain cases must) suspend the person’s licence or registration on an interim basis: clause 385(1) and (2) of the Bill (interim suspension); and

•   if the BPC reasonably believes that a person has ceased to be covered by the required insurance, or has ceased to comply with certain building legislation, or has failed to pay a penalty or to comply with licence conditions, or has failed to complete required training, the BPC may immediately suspend the person’s licence or registration: clause 388(1) of the Bill (immediate suspension).

In my view, the administrative decisions provided for in Chapter 7 of the Bill are compatible with section ‍24(1) of the Charter because of the key procedural fairness safeguards set out below.

In relation to emergency suspension and immediate suspension:

•   the BPC must give the person notice of its decision to suspend their licence or registration, the grounds for taking disciplinary action and the availability of review: clause 383(1) and clause 389(1) of the Bill respectively;

•   the BPC must provide written reasons for the emergency suspension and the immediate suspension to the person within five business days after giving notice: clause 383(2) and clause 389(2) respectively; and

•   the show cause notice process applies to an emergency suspension: clause 383(3).

In relation to interim suspension, additional information must be included in the show cause notice: clause ‍386.

Further, under clause 407, the BPC may at any time revoke a suspension, if satisfied it is appropriate to do so, and provide written notice of its decision to the licensed or registered person.

In addition to the safeguards listed above, a person can apply for internal review, and then VCAT review, of a decision of the BPC to suspend a licence or registration on an emergency basis (under clause 382), an interim basis (under clause 385), or an immediate basis (under clause 388).

For these reasons, I consider that the administrative decisions discussed above that are provided for in Chapter ‍7 do not limit the right to fair hearing.

Publishing adverse decisions and notifying of cancellation or suspension of licence or registration

Clause 409 provides that the BPC may publish on its website details of an adverse decision made against a licensed or registered person under Chapter 7 or the Building Act. Clause 404 requires a person whose licence or registration has been cancelled or suspended to give written notice of the cancellation or suspension to anyone with whom the person has entered into a contract for the carrying out of work.

Privacy and reputation, and freedom of expression

By permitting and requiring the publication and notification of details of adverse decisions, including the cancellation or suspension of licences or registrations, clauses 404 and 409 engage sections 13 and 15(2) of the Charter.

The publication on the BPC’s website of details of adverse decisions, permitted under clause 409, would involve the sharing of personal information (for example, at least the name of a licensed or registered person). Further, the adverse nature of the decision would affect the professional reputation of the person. However, I do not consider that clause 409 would limit either the right to privacy in section 13(a) of the Charter or the right not to have a person’s reputation unlawfully attacked in section 13(b).

With respect to section 13(a), any interferences with a person’s privacy would be lawful and not arbitrary. The details would be confined to only those necessary to identify a licensed or registered person against whom an adverse decision has been made. With respect to section 13(b), the publication of the decision details would be lawful and serves the legitimate and important purpose of making it known to the public the status of the licence or registration of people they might wish to engage for building or plumbing work (for example, whether disciplinary action has been taken against them, the length of any suspension etc). This, in turn, helps to create better outcomes for consumers.

Similar to adverse publicity orders discussed above, the purpose of publishing adverse decisions is also to deter non-compliance with building legislation and promote consumer awareness of the offender or contravener, owing to the risk of an adverse decision being published online and damaging a person’s reputation. Further, clause 409 contains the following protections of a person’s reputation:

•   the BPC must note whether internal or external review of the decision has been sought;

•   the BPC must remove from its website the details of any adverse decision that is overturned, or revise the details of any decision that is that is amended or substituted on internal or external review; and

•   the decision details cannot be published for longer than 5 years after the decision is made or ceases to have effect.

The requirement under clause 404 to directly notify anyone who has entered into a contract for the carrying out of work by a person whose licence or registration has been cancelled or suspended, confined to circumstances in which that person is prohibited from carrying out the work without the registration or licence, clearly serves a legitimate and important purpose of protecting consumers, including against risks to their safety. Accordingly, clause 404 also does not limit section 13 of the Charter.

Finally, by requiring information to be provided, clauses 404 and 409 engage section 15(2) of the Charter, which protects the right to freedom from being compelled to provide information. This right may be subject to lawful restrictions reasonably necessary to respect the rights of other persons including, relevantly, consumers in the building industry. Noting the purposes outlined above that these clauses seek to promote, I do not consider that they limit section 15(2) of the Charter.

Chapter 8 – Building permit applications and the building permit levy

Right to privacy

Clauses 421 and 422 of the Bill set out the information that must be specified in, respectively, a building permit application or a staged permit application. The information provided for in clauses 421 and 422 relates to contract prices, or agreed or estimated amounts, to be paid to builders/contractors, and the cost of chattels or certain items. As this information is not personal information, I do not consider that clauses 421 and 422 engage the right to privacy in section 13(a) of the Charter. If the right were found to be engaged, it would not be limited, because any interference with privacy would be in accordance with law and not arbitrary.

Fair hearing

Chapter 8 of the Bill provides for administrative decisions to be made in relation to building permit applications and building permit levies. Clause 424 of the Bill provides for when a relevant building surveyor must refuse an application for, or to amend, a building permit. With respect to the building permit levy:

•   clause 425 provides for the assessment and notification of the amount of building permit levy;

•   clause 417 empowers the BPC to reassess the amount of building permit levy after a building permit has been issued;

•   clause 418 empowers the BPC to assess the amount of building permit levy if a person is found guilty of, or is reasonably believed by the BPC to have committed, an offence against section 16(1) or 16B(1) of the Building Act;

•   clause 419 provides for the imposition of a penalty levy; and

•   clause 432 empowers the BPC to charge the reasonable costs incurred by it for reassessments after the issue of building permits or assessments in respect of unauthorised building work.

As noted above, the terms ‘proceeding’ and ‘party’ in section 24(1) of the Charter suggest that the fair hearing right was intended to apply only to decision-makers who conduct proceedings with parties that are determinative of existing rights. In my view, the administrative decisions provided for in clauses 424, 425, 417, 418, 432 and 419 do not involve the conduct of proceedings with parties so as to engage section 24(1), nor are they determinative of existing rights: rather, clause 424 sets out the circumstances in which a relevant building surveyor must refuse to issue a building permit, a prospective right; and clauses 425, 417, 418, 432 and 419 concern building permit levy amounts and the BPC’s related costs – these are liabilities incurred by, and not rights of, applicants.

If, however, a broad reading of section 24(1) were adopted and it was understood that the fair hearing right was relevant to decisions made pursuant to the clauses above, this right would not be limited. The right to a fair hearing is concerned with the procedural fairness of a decision. The entire decision-making process, including the availability of review, must be examined to determine whether the right in section 24(1) is limited. In my view, section 24(1) is not limited because of the following key procedural fairness safeguards provided for in Chapter 8:

•   the BPC must give the applicant for a building permit written notice of the applicable rate of the building permit levy and the amount payable: clause 425(2)(b)(iii), (3)(b)(iii) and (5)(b)(ii);

•   in respect of reassessments after a building permit has been issued:

• the BPC must give notice to the person liable to pay the additional amount of levy, any penalty levy (if applicable) and any costs charged, which addresses the matters in clause 427(2) and states that the person has the right to apply to VCAT for review of the decisions and calculations listed in clause 427(2)(g); and

• if applicable, the BPC must give notice to the person who paid the levy of its reassessment (and a refund of the difference between the levy amount paid and the reassessed levy amount) and the notice must also state that the person has the right to apply to VCAT for review of the reassessment: clause 428(2);

•   in respect of assessments of unauthorised building work, the BPC must give notice of the levy, any penalty levy and any costs charged, and the notice must also state that the person given the notice has the right to apply to VCAT for review of the decisions and calculations listed in clause 430(2)(g); and

•   in addition to the decisions listed above that are subject to review, VCAT review can also be sought of the BPC’s decisions under clause 425 as to the amount of building permit levy (which includes any amount of penalty levy), the reasons for a reassessment under clause 417(1) and, under clause 432, the costs charged in carrying out a reassessment or an assessment (clause 201).

For these reasons, I consider that the administrative decisions provided for in clauses 417(1), 418(2), 419(3), 425 and 432 would not limit the right to fair hearing, were it considered to be engaged at all.

Penalty levy

Under clause 419 of the Bill, an amount of penalty levy is imposed if:

•   a person liable to pay a building permit levy failed to notify the BPC within the specified time period (specified in clause 416(2) and (3)) about a variation to the building work that will result in an increase to the cost of the building work of a certain amount;

•   the BPC reasonably believes that a person who is liable to pay a building permit levy has committed an offence against clause 324(1) by knowingly providing false or misleading information referred to in clauses 416 (in relation to notifying the BPC of increased cost of building work), 421 (information required in building permit applications), 422 (information required in staged permit applications) or 423 (information required relating to class or classes of building); or

•   the BPC serves a notice under clause 430(1) after assessing a building permit levy in respect of unauthorised building work.

A penalty levy is not payable if the BPC is satisfied that the person:

•   honestly and reasonably believed that the variation to the building work did not increase the cost of the building work by a certain amount; or

•   will suffer financial hardship as a result of paying the penalty levy.

Right to fair hearing and to have a criminal charge decided by a court

As discussed above, the right to have a criminal charge decided by a competent court, which is a component of the right to a fair hearing, may include an implied protection against forms of punishment being imposed outside of a court process and following a finding of guilt.

Accordingly, it is necessary to discuss the characteristics of the penalty levy, which in my view should not be considered as constituting a criminal penalty for the following reasons:

•   Penalty levies are imposed primarily for the purpose of deterrence. As the obligation to give notice of any increase to the cost of the building work under clause 416 (or a failure to do so or a failure to do so accurately) affects the ability of the BPC to calculate the building permit levy, there can be a financial advantage to not providing correct information or not providing the information at all. The penalty levy functions to discourage non-declaration or under-declaration of costs, so that those who do not comply with the law do not gain a financial advantage over those who do. They are intended to deter failures to notify the BPC of increased costs of the building work and to promote compliance with the Bill, in particular by ensuring that the building permit levy paid reflects the cost of the building work.

•   This purpose is supported by setting the amount of penalty levy as a percentage of the assessed amount of building permit levy (clause 419(4)). I consider this amount to be reasonably necessary to deter contraventions of the Bill’s building permit levy provisions.

•   To the extent that the penalty levy is considered to serve a punitive purpose (e.g., to punish failures to notify the BPC of increased costs of building work in a timely and accurate matter), this does not make the penalty levy criminal, or akin to criminal punishment or a criminal charge. The penalty levy is still principally an administrative penalty. Unlike a fine, a penalty levy cannot be converted into other penal sanctions, and does not result in a criminal record. Because the penalty levy is part of the building permit levy (refer to clause 412(1)(c)) a penalty levy may be recovered in a court of competent jurisdiction as a debt due to the Commission (clause 433). Accordingly, any necessary enforcement of this civil debt would be governed by the civil debt recovery system, not the criminal law (e.g., a person would not be imprisoned for a failure to discharge the debt).

For the reasons listed above, I do not consider that the criminal process rights under the Charter are engaged by clause 419 of the Bill. Similarly, as the penalty levy provided for by clause 419 would not be considered as imposing criminal consequences, it does not result in the determination of a criminal charge pursuant to section 24(1) of the Charter.

Right not to be tried or punished more than once

Section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which that person has already been finally convicted or acquitted in accordance with law. This right reflects the principle of double jeopardy which only applies in respect of criminal offences. It will not prevent civil proceedings being brought in respect of a person’s conduct which has previously been the subject of criminal proceedings, and vice versa.

The penalty levy provided for by clause 419 of the Bill is imposed by that clause if the BPC reasonably believes that a person liable to pay a building permit levy has failed to notify the Commission within the time required of an increase in the cost of building work, or has committed an offence against clause 324(1) in relation to providing false or misleading information. A penalty levy is also imposed by clause 419(1)(c) if the BPC serves a notice on a person under clause 430(1) advising the person that they are liable to pay an amount of building permit levy in relation to building work (for which a building permit is required) that was carried out or that is reasonably believed by the BPC to have been carried out without a building permit.

Whether a person’s right not to be punished more than once is engaged by clause 419 will depend on whether the penalty levy is of such a nature and magnitude to constitute truly penal consequences. As I have noted above, the penalty levy would not be considered punitive or a criminal sanction.

Accordingly, I consider that clause 419 of the Bill is compatible with the right not to be tried or punished more than once under section 26 of the Charter.

Presumption of innocence

As also noted above, the right to be presumed innocent until proved guilty according to law in section 25(1)) of the Charter applies to people charged with a criminal offence. Assuming this right has application beyond criminal proceedings, imposing a penalty levy based on the BPC’s reasonable belief that a person has contravened clause 416 or has committed an offence against clause 324 or against section 16(1) or 16B(1) of the Building Act, as provided for respectively under clause 419(1)(a), (b) or (c), may limit this right. However, I consider that any such limitation is reasonably justified. As noted above, the primary purpose of clause 419 is to deter the avoidance of paying the full amount of building permit levy by a failure to apply for and obtain a building permit in accordance with Part 3 of the Building Act or a failure to notify the BPC of increased costs of the building work or by the provision of false or misleading information.

Further, the Bill provides that a person liable to pay a penalty levy is able to apply for VCAT review of the BPC’s decision under clause 419(1) if it is believed that a person has committed an offence (clause 201).

For the reasons above, I conclude that clause 419 is compatible with section 25(1) of the Charter.

Building industry orders

Chapter 9 of the Bill enables the Governor in Council to make building industry restructuring orders and building industry transfer orders.

Building industry restructuring orders made under Part 9.1 can only be made by the Governor in Council on the recommendation of the Minister if the Minister is satisfied that the proposed order is consistent with the building system objective and is necessary to facilitate the better integration or any improvement of the building system, or the delivery of a specific strategy, policy, program, service or project relating to the building system. They apply in respect of building industry bodies being the BPC, the Building Appeals Tribunal, the State Building Surveyor and the Building Monitor. While a building industry restructuring order can establish a new building industry body, the new body will be a body corporate (clause 440).

Part 9.2 enables the Governor in Council to make building industry transfer orders on the joint recommendation of the Minister and the Treasurer if they are required by a building industry restructuring order, necessary to enable the transfer of a program or project for the building system or are necessary for the transfer of property, rights and liabilities from one building industry body to another.

The provisions in the Bill enable, rather than give effect to, a restructure or transfer of property, rights and liabilities. However, Orders made under Part 9.2 have the potential to impact on property, rights or liabilities or employment of natural persons. If a transfer order is made by the Governor in Council on the recommendation of the Minister and the Treasurer, all property rights and liabilities specified in the order transfer to the recipient building industry body, and the recipient building industry body is substituted as a party to any agreement or proceeding. The transfer is authorised by law and the enabling provisions are confined and structured, accessible to the public (the orders require publishing in the Government Gazette), formulated precisely and do not operate arbitrarily.

I therefore consider that the transfer of property, rights and liabilities under a building industry transfer order would not limit the property rights of any natural persons holding the interest as they are not being deprived of their interest. Rather, any right or liability of the transferee building industry body would be transferred from one building industry body to another without altering the substantive content of that right or liability. Insofar as a cause of action may be considered property within the meaning of section 20 of the Charter, I also consider that the provisions discussed above would not result in any deprivation of property as they would not extinguish any cause of action which a person may have against the relevant building industry body.

If employees are required to be transferred as a result of the making of a building industry restructuring order or a transfer order and those employees are employed under Part 3 of the Public Administration Act 2004 (PAA), the provisions in the PAA would apply.

If employees are not Part 3 employees, clause 458 provides a mechanism to transfer employees on terms and conditions of employment determined by the Secretary that are no less favourable overall than those that applied to the person immediately before the transfer date, and with the protections set out in that clause. A transferred employee would therefore have equivalent entitlement to benefits accrued as an employee of the transferee body.

I also note that a transferring employee would not be denied the capacity to seek alternative employment on similar terms and that the provisions, if used, are unlikely to constitute an interference with private life of sufficient gravity so as to limit the right to privacy.

I further note that, while the provision effecting the transfer of staff would, if used, automatically alter a person’s employer without their consent, the person’s ongoing employment is of their own volition. Accordingly, the right to freedom from forced work would not be limited by such a transfer.

Noting that Part 9 contains powers to make orders, if a building industry restructuring order or a building industry transfer order were to be made, I do not consider that any rights under the Chater would be limited for the reasons explained above.

Chapter 10 – General

Information sharing, disclosure and use of personal information

Part 10.1 of Chapter 10 of the Bill includes information sharing provisions and provisions concerning the use and disclosure of building and plumbing information, which includes personal information, as well as commercially sensitive information and dispute resolution information obtained under Part 4 of the Domestic Building Contracts Act 1995. Part 10.1 of the Bill will replace sections 259A, 259AB, 259B and 259C of the Building Act and section 52I of the Domestic Building Contracts Act 1995. The provisions will provide for the circumstances in which permitted persons, which includes the BPC and its employees, may use and disclose information and also enter into information sharing arrangements with permitted agencies.

The Part also includes an offence provision to ensure confidentiality of building and plumbing information (clause 461) and provisions concerning use of building and plumbing information, including personal information (clauses 462 and 463), disclosure of building and plumbing information (clause 464), disclosure of information obtained under Part 4 of the Domestic Building Contracts Act 1995 (clause 465), provision of information by the chief dispute resolution officer to the Director of Consumer Affairs Victoria (clause 467), and that the BPC may disclose cooling tower information (clause 468). It also provides for the circumstances in which commercially sensitive information can be disclosed (clause 466).

Right to privacy

To the extent that the information shared between the BPC, any permitted person and any other person includes personal information, the Bill will engage the right to privacy in section 13(a) of the Charter. In my opinion, any limit on the right to privacy by Part 10.1 of the Bill is reasonable and justified.

Although these provisions require and permit the BPC and permitted persons to use and disclose personal and identifying information, I do not consider these provisions are unlawful or arbitrary.

The purposes of the information sharing provisions are facilitating the sharing or exchanging of information held by the BPC and the permitted persons. The information shared must be reasonably necessary to assist the BPC or other permitted person to carry out the BPC’s functions or powers. The Bill also provides for the sharing of information between the BPC and permitted agencies.

Clause 470 of the Bill imposes several limitations on how information can be shared under an information sharing arrangement made under that clause. Under clause 470(1) and (3)(a), if the information is to be shared between the BPC and a permitted agency, the information must be reasonably necessary to assist in the performance of the BPC’s functions or the exercise of its powers or the functions of the permitted agency or the exercise of its powers. Further, under clause 470(2) and (3)(b), if the information is to be shared between two permitted agencies, it may only be information that (a) the receiving permitted agency could have requested from the BPC under clause 470(3)(a); or (b) is reasonably necessary to assist in the performance of the permitted agency’s functions under the Bill.

Further, the BPC and each permitted agency that is a public entity within the meaning of the Public Administration Act 2004 is bound by the requirements of the Privacy and Data Protection Act 2014 and must ensure that any collection, use or disclosure of information is undertaken in accordance with the Information Privacy Principles set out in Part 3 of that Act.

In my opinion, these provisions will not result in any arbitrary or unlawful interference with privacy, as any disclosure of personal information authorised by these provisions will only occur to the extent necessary to perform the functions of the BPC or permitted agency and, for the sharing of information between permitted agencies, the functions of the permitted agency are confined to any functions the agency has under the Bill.

Accordingly, I consider that the information sharing arrangements provided for under clause 470 of the Bill are compatible with the right to privacy under section 13(a) of the Charter.

Immunities and indemnities

Part 10.2 of the Bill includes clause 473 which provides for a statutory immunity for members and staff of public authorities for acts or omissions done in good faith performing a function or exercising a power of the public authority under this Bill or the regulations, or the Building Act or regulations or in the reasonable belief that the act or omission was in the performance of a function or the exercise of a power under that legislation. Clause 473(2) provides that the liability instead attaches to the public authority, which, in effect, provides for an indemnity for the members and staff of these public authorities.

Fair hearing

The fair hearing right is relevant where statutory immunities are provided to certain persons as this right has been held to encompass a person’s right of access to the courts for determination of a civil claim. Similarly, insofar as a cause of action may be considered ‘property’ within the meaning of section 20 of the Charter, clause 473 may also engage this right.

As noted above, clause 473 of the Bill provides an immunity for members and staff of public authorities to not be held liable for anything done or omitted to be done in good faith in carrying out a function or exercising a power under the legislation referred to above, or in the reasonable belief that the act or omission was in the carrying out of a function or exercise of a power under that legislation.

While a public authority would include the BPC, clause 473(3) provides that clause 473 does not apply to a municipal council, so it does not apply to persons employed or engaged by a municipal council.

The exclusion from personal liability under clause 473 of the Bill will not interfere with the right to a fair hearing, because parties seeking redress are instead able to bring a claim against the public authority (clause ‍473(2)).

Additionally, the person employed or engaged by the public authority will still remain personally liable for any conduct not performed in good faith. Accordingly, this provision does not limit the right to a fair hearing under the Charter.

For these reasons, I consider that the limitation imposed on the right to a fair hearing by this immunity is justified and so compatible with the Charter.

Chapter 11 – Savings and transitional provisions and consequential amendments

Transfer of property, rights and liabilities from VBA to BPC

Clause 501 provides that all property and rights that were vested in the VBA are vested in the BPC and all liabilities of the VBA become liabilities of the BPC.

Right to property

The transfer of property, rights and liabilities from the VBA to the BPC is relevant to the property rights of natural persons who hold an interest in the liability transferred. However, this transfer of liabilities will not limit the property rights of persons holding the interest as they are not being deprived of their interest in the liability. Rather, the liability is transferred from one statutory office to another without altering the substantive content of that right.

Insofar as a cause of action in relation to any potential liability held by the VBA may be considered ‘property’ within the meaning of section 20 of the Charter, clause 501 may engage this right. However, in my opinion, these new provisions do not effect a deprivation of property as they do not extinguish any cause of action which a person may have against the VBA. Rather, liability is transferred to the BPC.

Accordingly, I consider that the amendment to transfer liabilities to the BPC does not limit this Charter right.

Transfer of staff

Clause 508 provides that a person who was employed by the VBA immediately before the commencement day is to be regarded as having been employed or engaged by the BPC with effect from the commencement day. The transfer of staff occasioned by this amendment is relevant to the Charter rights to freedom from forced work (section 11) and the right to privacy (section 13). However, for the reasons below, I consider that neither right is limited by these amendments.

Freedom from forced work

The right to freedom from forced work relevantly provides that a person must not be made to perform forced or compulsory labour, which includes all work or service exacted from any person under the menace of a penalty and for which the person has not offered themselves voluntarily (with certain exceptions).

While the provision effecting the transfer of staff will automatically alter a person’s employer without their consent, the person’s ongoing employment is of their own volition. For example, clause 509 expressly states that nothing in Division 3 of Part 11.1 prevents a person from resigning in accordance with the terms and conditions of their employment.

Accordingly, the right to freedom from forced work is not limited by this amendment.

Right to work

The right to privacy is a broad right that protects a person from interference in their personal and social sphere, including their capacity to pursue their chosen field of employment and develop and maintain personal relationships in the course of employment. While the right is relevant to matters of employment, it would generally only be considered limited by restrictions on employment that have consequential effects on an individual’s capacity to experience a private life.

Reforms concerning the terms of an individual’s employment, particularly in the context of a statutory reform in relation to the person’s employment (as discussed above), and where an employee is not being denied the capacity to seek alternative employment on similar terms, are unlikely to constitute an interference with private life of sufficient gravity so as to limit the right to privacy.

Further, subclauses 508(1)(b)–(c) stipulate that a person whose employment is transferred to the BPC will be employed on terms and conditions no less favourable overall than those that applied to them at the VBA and will have equivalent entitlement to benefits accrued as an employee of the VBA. Therefore, the proposed transfer will not result in any materially detriment to a staff member’s employment terms, conditions or entitlements. Therefore, I am satisfied that the right to work is not limited by this amendment.

Conclusion

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

The Hon. Gabrielle Williams, MP

Minister for Transport Infrastructure

Minister for Public and Active Transport

 Gabrielle WILLIAMS (Dandenong – Minister for Transport Infrastructure, Minister for Public and Active Transport) (10:46): I move:

That this bill be now read a second time.

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

Incorporated speech as follows:

Background to the Bill

This Bill is first and foremost about protecting consumers from debilitating debt and heartbreak. The single biggest investment most Victorians will make in their lifetime is their home. Whether Victorians are purchasing or renting, they should be able to do so with the confidence that they will be moving into a safe, high quality and affordable home which is free from costly defects. The Building and Plumbing Administration and Enforcement Bill delivers more protections for Victorians, giving them greater peace of mind by strengthening regulatory oversight of the sector and putting consumers at the core of the system, where they belong.

The affordability and availability of housing is one of the most pressing issues we face today. This is the case not only in Victoria, but around Australia and in many other countries around the world. The Victorian Government is fighting for consumers with comprehensive reforms to deliver a stronger building regulatory system.

In 2023 the Government released the Housing Statement, setting out our plan of building 800,000 new homes over a decade. At a federal level, we are working with the Commonwealth to deliver on the Housing Accord, which targets the construction of 1.2 million new homes nationally by mid-2029. These are ambitious targets, but ambition is necessary to meet the needs of our growing state. The old system, established by a previous Liberal government, left Victorian workers on their own and saw housing become more expensive for both owners and renters, and first home buyers felt their goals slip further from their reach.

Victoria’s program of reform is leading the nation and protecting consumers. More homes are being built in Victoria than in any other state. While other states have sought to water down their building controls to catch up, Victoria continues to build more homes and build them well.

In 2025, we released the Building Statement to expand upon the foundation of the Housing Statement and guide our program of reforms to the building system. At the centre of this program is the establishment of a new and more powerful watchdog with the teeth it needs to hold dodgy building work to account, the Building and Plumbing Commission (BPC).

The BPC consolidates all aspects of building control, including regulation, insurance and dispute resolution, into a single agency overseeing Victoria’s building and plumbing industries. With tough new powers, the Commission represents the beginning of a new era of building and plumbing regulation in Victoria. It is the most comprehensive overhaul of the system since the Building Act was introduced over 30 years ago.

Over the past 12 months, the Government has delivered a slate of reforms through the Building Legislation Amendment (Buyer Protections) Act 2025, the Domestic Building Contracts Amendment Act 2025, and the Building Legislation Amendment (Fairer Payments on Job Sites and Other Matters) Act 2025. These Acts began the process of consolidating all aspects of the regulatory system into a single body, with the Victorian Building Authority operating as the BPC from 1 July 2025.

Through these Acts, we are giving the Commission new powers to force builders to rectify poor work, closing a loophole that prevented the old regulator taking this action after occupants have moved in. We are introducing a new first-resort warranty scheme for projects of up to three storeys, supporting consumers to access their insurance more quickly when issues arise. We have also introduced a new developer bond to provide more financial protection for owners of apartments in buildings four storeys or higher, holding developers accountable for poor building work.

We are modernising the dispute resolution process, and we have worked proactively with industry and consumer groups on reforms to ensure the rules around domestic building contracts are clear and fair.

We have legislated changes to the security of payment framework to better protect sub-contractors and make sure they are paid fairly and on time for their work on site.

These reforms rightly protect consumers, but they also provide industry with more certainty. With clear pathways to identify and rectify defects, and a dispute resolution process that is easier to navigate, builders and plumbers doing the right thing will benefit, while those doing the wrong thing will be held to account. Greater consumer confidence also means greater investment in new homes and development across our state.

The Building and Plumbing Administration and Enforcement Bill is the next step in permanently establishing the Commission. The main purposes of the Bill are:

• To provide for the administration and regulation of the building and plumbing industries in a standalone Act;

• To strengthen the enforcement of building legislation and building and plumbing standards;

• To provide effective and streamlined disciplinary processes for licensed and registered persons in the building and plumbing industries;

• To ensure effective regulation through the continuation of the building permit levy; and

• To make consequential amendments to the Building Act 1993 and other Acts.

The scale of change in our state since the Building Act was introduced in 1993 is immense, and the Building Act has become increasingly cumbersome as more is bolted on to try to keep up. Now is the time to establish a new principal Act which clearly articulates the centrality of consumers to Victoria’s building industry, a new legislative structure and a new, more robust regulator in the Building and Plumbing Commission.

The building system objective

The Bill introduces, for the first time, a clear building system objective. Its purpose is to define the fundamental goal that underpins all regulation and activity across Victoria’s building system: protecting consumers.

At its core, this objective makes clear that protecting the health and safety of building occupants and the public is paramount whenever building and plumbing work is carried out or regulated. By placing this principle at the centre of the framework, the Bill provides a clear lens through which all decisions that affect the building system are to be made. This will protect consumers from expensive rectification costs and rebuild confidence and trust in Victoria’s building system.

Building legislation

This Bill introduces a new definition of ‘building legislation’ to bring together the various Acts and subordinate legislation that regulate Victoria’s building system under a single, coherent administration and enforcement framework.

By clearly identifying the legislation that sits within this framework, including this Bill, the Building Act 1993, the Domestic Building Contracts Act 1995, the Building and Construction Industry Security of Payment Act ‍2002, and any other prescribed legislation, the reforms remove fragmentation and uncertainty about how these laws interact.

Importantly, the definition ensures that all building legislation is interpreted consistently having regard to the new consumer-focused building system objective. This promotes a unified approach to regulation, supports clearer decision-making and ensures all related legislation is working towards a common purpose across the building system.

The Building and Plumbing Commission

In 2024, an independent review into the Victorian Building Authority’s handling of consumer complaints confirmed that significant changes were required to better protect Victorians building or renovating a home. In response, the Government has supported a sweeping transformation of the Authority’s culture and performance. This Bill progresses the next step in that transformation by abolishing the Authority and replacing it with the new Building and Plumbing Commission.

The Bill provides flexible, accountable, and transparent governance arrangements for the Commission. Up to three Commissioners and a CEO may be appointed to govern the Commission, allowing the Government to add required skills and experience to the governing body and ensure it can respond to regulatory challenges in a timely manner.

To ensure the Commission acts in the public interest, without bias or conflicts of interest, the Bill introduces new eligibility requirements for Commissioners and the CEO. Persons who have worked in roles where there is a high risk of a conflict of interest, such as lobbying on behalf of industry within the past two years, will be ineligible for the positions of Commissioner or CEO. Similarly, in the immediate two years after leaving office, ex-Commissioners are not to undertake employment in roles where there is a high risk of a conflict of interest.

To ensure greater transparency and oversight of the Commission’s operations, the Bill includes new reporting requirements. The Commission will report on a strategic plan, an annual work program and its performance against a consumer safety focused objective. For ongoing accountability and continuous improvement, the Bill provides for independent governance reviews within three years of the Commission’s establishment and four years after the first review.

Clear roles in the new administration and enforcement framework

The Bill provides clarity to the roles of different entities across the building system. For the first time, the roles, relationships and responsibilities of government and regulatory bodies will be defined in one place. This means that anyone using building legislation – whether consumers, industry or regulators – can clearly understand how the system operates and where responsibilities sit. This strengthens accountability, improves regulatory effectiveness and supports confidence in the building system.

The Minister

The Bill clarifies the Minister’s powers so as to support implementation, align regulation with government policy, and respond quickly to emerging risks, technical developments and urgent safety issues.

The Minister also ensures strong governance across the system, including by recommending statutory appointments to the Governor in Council and approving strategic plans of the Commission and the Building Monitor.

Ministerial advisory committees

The Bill provides for the Minister to seek expert advice through advisory committees. This recognises the technical complexity of the building system and ensures decisions can be informed by the right expertise at the right time.

Secretary

The new administration framework clearly sets out the Secretary’s role in the system, providing role clarity across the building system. The Secretary, with their department, is responsible for accurate and high-quality policy advice to the Minister and effective implementation of government policy through legislation and regulation.

The insurance manager

The insurance manager oversees the operation of Victoria’s statutory domestic building insurance arrangements. Appointed and employed by the Commission, the insurance manager reports to both the Minister and the Commission on performance of the statutory insurance scheme, as well as outstanding policies issued under the previous domestic building insurance scheme. This dual reporting role is central to transparency, accountability and the long-term sustainability of the insurance schemes, ensuring they continue to meet their public interest objectives.

The chief dispute resolution officer

The Bill integrates the chief dispute resolution officer into the new administration framework, to be appointed and employed by the Commission. Importantly, when performing dispute resolution functions, the chief dispute resolution officer and the conciliation officers and assessors they appoint, operate independently of the Commission’s direction or control. This independence is essential to protect the rights of the parties, support procedural fairness, and maintain public confidence in the dispute resolution process.

The State Building Surveyor

The State Building Surveyor provides critical technical leadership within Victoria’s building system. The Bill transfers this role from the Building Act 1993 to the new administration framework.

To strengthen the statutory functions of the role, the Bill provides the State Building Surveyor with new information-gathering powers to support effective monitoring and early identification of emerging risks. These powers ensure regulators have the technical insight needed to respond to issues early, promote compliance, and maintain confidence in the safety and integrity of the building system.

The Building Monitor

The Building Monitor is an independent advocate for consumers within Victoria’s building system. Empowered to gather information and engage with relevant entities for this purpose, this role is also being transferred from the Building Act 1993 to the new administration framework.

Municipal councils

Municipal councils continue to play a vital role in the administration and enforcement of building legislation at a local level. The Bill retains these responsibilities as part of the new administration and enforcement framework, ensuring councils are clearly positioned within the modern regulatory structure.

The Bill preserves the Minister’s ability to direct councils in the performance of their functions ensuring system-wide accountability and consistent regulatory outcomes across Victoria. At the same time, the State Building Surveyor has a clear role in monitoring councils’ building control functions and providing advice and support, helping to strengthen capability and promote best practice.

Municipal building surveyors

Municipal building surveyors play a frontline role in protecting safety and compliance within the building system in their municipality. They exercise statutory powers under building legislation, including by issuing building permits, occupancy permits, building notices, building orders and emergency orders within their municipal districts.

The Bill maintains clear accountability by enabling both the Minister and the Commission to direct municipal building surveyors in the performance of their functions where appropriate. This ensures consistency, responsiveness and effective intervention when risks arise.

Private building surveyors

Private building surveyors continue to play a role in providing building control functions such as issuing building and occupancy permits. Strong safeguards remain in place to protect independence and integrity. The appointment of a building surveyor may only be terminated with the consent of the Commission, preventing inappropriate pressure and supporting professional independence. Where serious contraventions are identified, private building surveyors are required to escalate these matters to the Commission for further regulatory action.

The Building Appeals Tribunal

The Bill continues the Building Appeals Board as the Building Appeals Tribunal. This Tribunal plays a key role in providing independent review and determination of building matters. It exercises both administrative appeal and original jurisdiction under building legislation, ensuring decisions are subject to proper technical oversight and can be tested on their merits.

The new name of the Tribunal more accurately reflects its legal status, purpose and functions. Importantly, its jurisdiction, powers, constitution and procedures remain unchanged, preserving continuity and legal certainty.

A comprehensive suite of modern compliance and enforcement powers

The Bill establishes a new enforcement framework for Victoria’s building legislation, which will equip the Commission and other building system regulators with modern, best practice and efficient powers to protect consumers and uphold the integrity of the industry.

While the vast majority of builders and plumbers work with pride, professionalism and high standards of quality and integrity, we also know that bad actors need to face consequences to stop them undermining hard-working builders in the industry. When things do go wrong, the financial and emotional impacts on consumers can be devastating. And when the reputation of the industry is tarnished, all hard working, professional builders and plumbers are impacted as consumer confidence and investment in the industry diminishes.

That’s why we need a robust compliance and enforcement framework that can drive out those who wilfully flout the law and guide, educate and assist those who are doing the right thing.

The enforcement framework contains a range of measures to enhance the ability of the Commission and other building system regulators, such as municipal building surveyors, Energy Safe Victoria and fire safety authorities, to monitor and investigate compliance with building legislation. These include:

• Clarifying and strengthening powers of authorised persons to enter buildings or land to monitor and investigate compliance.

• Strengthening the Commission’s investigation powers with an administrative power to compel a person to answer questions.

• Protecting the ability of authorised persons, including staff of the Commission, to undertake their work free of obstruction, abuse or assault through the introduction of new criminal offences.

The Bill expands the suite of enforcement options available at both ends of the scale of severity to enable the Commission to act efficiently and proportionately. Early intervention powers, such as improvement notices and a modernised infringement scheme, will allow the Commission to make proactive regulatory interventions to prevent harms from escalating. For more severe contraventions, enhanced powers will enable the Commission to seek significant consequences that better reflect the seriousness of major contraventions under building legislation.

Civil penalties

The Bill introduces a civil penalty regime, to provide the Commission with a wider suite of powers to hold bad-faith practitioners to account and to align it with other consumer regulators. This will allow the Commission to pursue much higher financial penalties for the most serious breaches of building legislation. Courts will be able to strip companies of the profits they make from cutting corners and disregarding the health and safety of building occupants and the public.

These provisions ensure that penalties appropriately respond to serious breaches, where the current penalty limits mean that a fine can simply be a cost of doing business for the most profitable firms. The size of the company, large or small, will be taken into account by the court when determining an appropriate civil penalty.

Ancillary orders

The Bill also introduces a new range of ancillary orders. These consumer-focused orders will be available to the court under the civil penalty regime, and in criminal proceedings in some instances.

Courts will have an enhanced power to disqualify body corporates and individuals from being licensed or registered, for a period to be determined by the court. That could mean a lifetime ban, where justified. Enhanced disqualification powers are necessary for public protection, and to remove rogue operators who unfairly compete against and undercut responsible licensed and registered persons and businesses.

Other new orders include adverse publicity orders, consumer compensation orders, and regulatory compliance and training orders. Alongside a civil penalty, an industry member may also be ordered to provide a community service relating to their breach of building legislation, like a consumer support service. These ancillary orders are similar to those in the Australian Consumer Law and are common to civil penalty regimes.

Director liability

The Bill will introduce two new forms of liability to enhance the accountability of company directors in the building and plumbing industry. Company structures are a standard way to run a building or plumbing business, however, these structures can be misused to avoid regulatory obligations and consumer protections. When this occurs it is building consumers, government and taxpayers who bear the costs left behind.

If a company does not comply with an emergency order, building order, direction to fix, or rectification order, the Commission will have the option of making company directors jointly and severally liable for compliance with the order or direction by issuing a declared director notice.

The option of issuing a declared director notice that makes a director jointly and severally liable for compliance will incentivise building companies to meet their regulatory obligations. The new scheme will provide fairness to directors by providing them with the option of seeking review of a declared director notice if they did not take part in company management when the order was issued, or if they took reasonable steps to ensure the company complied with the order.

In a small number of serious offences which threaten the health and safety of building occupants and the public, the Bill expands the criminal and civil liability of company directors by ensuring they can be subject to proceedings if they fail to exercise due diligence to prevent the company’s wrongdoing. This includes breaches which are cornerstones of the regulatory framework, such as those relating to unlawful work, unregistered work, and failure to comply with rectification orders.

Disciplinary action

The primary purpose of the disciplinary framework in the Bill is to protect consumers, building occupants and the public by upholding high standards among licenced and registered persons in the building and plumbing industries. The Bill provides for a single, consistent and equitable disciplinary framework for all classes of licensed or registered person, providing greater clarity to consumers and the industry.

The framework is based on an efficient show-cause process, which is timebound to ensure there are no unnecessary delays, while providing procedural fairness through the opportunity for licensed and registered persons to make representations as to why disciplinary action should not be taken against them. The grounds for disciplinary action will be reduced in number but broadened in scope, consolidating the voluminous and prescriptive grounds in the current disciplinary schemes.

To ensure the Commission can take timely action to protect consumers from harm, the Bill provides expanded powers to suspend a licensed or registered person with immediate effect. These powers will be available for severe matters, including where a licensed or registered person does not hold required insurance, poses an unacceptable risk to consumers or is performing or allowing work that poses a serious risk to health and safety.

The Bill provides for a flexible range of disciplinary sanctions from reprimands through to cancellation and disqualification, as well as financial penalties. The maximum financial penalties are set at a consistent level for all classes of licensed or registered person and have been increased to better deter breaches and ensure decision makers can take into account the full scale of harm when determining a penalty for severe breaches.

A person directly affected by a disciplinary decision will have the opportunity to seek both internal review by the Commission and review by VCAT. Internal review, which is not available under the current disciplinary scheme for licensed and registered plumbers, provides additional procedural fairness through a free and timebound process. To enhance consumer protection, an application for review to VCAT will no longer automatically stay the operation of a disciplinary decision.

Sustainable funding for regulating the building system

The Bill provides for the continuation of the building permit levy, a long-standing feature of the building system which ensures the effective regulation of the system.

A substantial portion of the Commission’s operating costs are to be recovered through various fees including licence and registration fees. The Bill will require all fees to be set in regulations upon their next review. This approach ensures consistency across all fee categories and appropriate consultation and scrutiny of fee changes under the Subordinate Legislation Act 1994.

Building and plumbing industry orders

The Bill provides for a flexible approach to adjust or consolidate the statutory entities established under the Bill via the use of Ministerial restructuring and transfer orders, should a need be identified. These orders allow for existing bodies to be renamed, new bodies to be created and for staff and assets to be transferred, facilitating agile reform as part of a more contemporary legislative framework.

Subordinate legislation

The enactment of a new principal Act of building and plumbing will require the subsequent development of complementary subordinate legislation. To this end, the Bill provides various general regulation-making powers.

In many cases, existing provisions in regulations made under the Building Act 1993 will need to be remade under the Building and Plumbing Administration and Enforcement Act.

An important component of subordinate legislation under the Bill will include a new set of standalone regulations to prescribe infringement offences under building legislation.

Commencement

Given the comprehensive nature of the reforms made by the Bill, a sufficient period to prepare for and successfully implement the reforms is required. This will ensure the Commission, other building system regulators and industry are well positioned to adjust to the new legislation.

The Government’s intention is that provisions of the Bill will be proclaimed to commence on 1 July 2027. If not proclaimed earlier, the Bill provides that the new laws will commence on 1 December 2027.

Conclusion

The establishment of the Building and Plumbing Commission under a new administration and enforcement framework for the building system will give Victorians greater confidence in the integrity of building and plumbing work and the quality of our homes. This robust framework will reduce the risk of loss and harm to the public and place consumers at the heart of the system.

These reforms will deliver greater peace of mind to Victorians, greater confidence in our hard-working builders and plumbers and more certainty to industry. Builders and plumbers who do the right thing will benefit, while those doing the wrong thing will face consequences.

Importantly, the reforms will help deliver safe, high quality and affordable homes for working Victorians.

I commend the Bill to the house.

 David SOUTHWICK (Caulfield) (10:46): I move:

That debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 1 April.