Wednesday, 30 October 2019
Bills
Building and Environment Protection Legislation Amendment Bill 2019
Bills
Building and Environment Protection Legislation Amendment Bill 2019
Statement of compatibility
Mr WYNNE (Richmond—Minister for Housing, Minister for Multicultural Affairs, Minister for Planning) (10:36): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Building and Environment Protection Legislation Amendment Bill 2019.
Opening paragraphs
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 Environment Protection Legislation Amendment Bill 2019.
In my opinion, the Building and Environment Protection Legislation Amendment Bill 2019, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.
Overview
The Bill makes a number of amendments to the Architects Act 1991 and the Building Act 1993 to improve regulation of the architect, building and plumbing industries, and to modernise and strengthen relevant governance arrangements. The Bill also makes some further miscellaneous amendments to the amending legislation of the Environment Protection Act 2017.
Human Rights Issues
The human rights protected by the Charter that are relevant to the Bill are the right to privacy and reputation (section 13), and certain rights in criminal proceedings (section 25).
Right to privacy and reputation
Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. Section 13(b) provides that a person has the right not to have their reputation unlawfully attacked. 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.
Information-gathering powers
Clause 6 of the Bill amends the Architects Act 1991 to insert section 17B, which provides that, in order to carry out any of its functions under that Act, the Architects Registration Board of Victoria (ARBV) may give a person a notice in writing requiring the person to provide information or documents in the custody or control of the person to the ARBV or an appointed person. The ARBV may require a person to provide such information or documents if the ARBV has reasonable grounds to suspect that an architect has contravened a provision of the Act or the regulations, to determine whether the Act or the regulations have been complied with, to assist in the enforcement of any standards of professional conduct and practice for architects, or to assist the ARBV or an appointed person in making a decision whether or not to hold an inquiry into an architect’s fitness to practise or professional conduct.
In my view, although the right to privacy is relevant to these information-gathering powers, it is not limited by new section 17B. While the ARBV may require information or documents from any person, the confined purposes for which the information or documents can be required mean that such information or documents will typically be in the custody or control of a person participating in the architecture industry, who will have a diminished expectation of privacy with regard to such material. The information that can be requested by the ARBV is limited to information that is necessary for, or relevant to, determining whether an architect has complied with or contravened the regulatory scheme and assisting in its enforcement.
To the extent that section 17B could be considered to interfere with a person’s privacy, the interference would not constitute an unlawful or arbitrary interference. The power to compel information in relation to potential contraventions of the Act, regulations or associated professional standards is necessary for the ARBV to be able to effectively monitor and enforce compliance with the scheme, which operates to regulate the professional conduct of architects. In my view, to the extent that clause 6 interferes with the right to privacy, it is neither unlawful nor arbitrary, and is therefore compatible with the Charter.
Register
Section 216D of the Building Act 1993 requires councils to establish and maintain a register of swimming pools located in the municipal district of the council. Clause 30 of the Bill amends section 216D to increase the categories of material that must be contained on the register from ‘information’ to ‘information, records and documents’. The inclusion of ‘records’ and ‘documents’ reflects the intention that copies of certificates and other documents issued in respect of pools be permitted to form part of the register, as well as information that is manually recorded.
The register may be inspected by: owners or occupiers of land on which a swimming pool is located; swimming pool inspectors in relation to a barrier that the inspector has been engaged to inspect; and prescribed persons, agencies or bodies if the inspection is necessary for the performance of their functions. The council must ensure that no information in the register is published or made available to any other person, agency or body. The Victorian Building Authority (VBA) may publish information on its website about the number and types of swimming pools in the municipal district in general terms but must not disclose details of any owner or specific location of a swimming pool.
To the extent that the expanded categories of material to be included on the register include additional personal information, I believe that any interference with the right is lawful and not arbitrary. The establishment and maintenance of a register of private swimming pools is intended to facilitate inspections to ensure compliance with relevant safety requirements. Only limited personal information may be shared between regulators where necessary for the performance of their functions, and will not be made public. Further, occupiers and owners of land on which a swimming pool is located will only be able to inspect the register in relation to information recorded in the register about that swimming pool. The collection and publication of information on the register is necessary for, and tailored to, ensuring compliance with safety requirements, and accordingly does not constitute an arbitrary interference with privacy.
Presumption of innocence
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 in section 25(1) 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.
‘Reasonable excuse’ exception
Clause 6 of the Bill amends the Architects Act 1991 to insert section 17C, which provides that a person must not, without reasonable excuse, refuse or fail to comply with a requirement of the ARBV or an appointed person. Failing to comply with a requirement of the ARBV is an offence.
By creating a ‘reasonable excuse’ exception, the offence in section 17C places an evidential burden on the accused, in that it requires the accused to raise evidence of a reasonable excuse for non-compliance. However, in doing so, this offence does not transfer the legal burden of proof. Once the accused has pointed to evidence of a reasonable excuse, which will ordinarily be peculiarly within their knowledge, the burden shifts back to the prosecution to prove the essential elements of the offence. I do not consider that an evidential onus of this kind limits the right to be presumed innocent, and courts in other jurisdictions have taken this approach. Accordingly, I am satisfied that this provision is compatible with the right to the presumption of innocence.
Right to protection against self-incrimination
Section 25(2)(k) of the Charter provides that a person charged with a criminal offence is entitled not to be compelled to testify against themselves or to confess guilt. This right is at least as broad as the common law privilege against self-incrimination. It applies to protect a charged person against the admission in subsequent criminal proceedings of incriminatory material obtained under compulsion, regardless of whether the information was obtained prior to, or subsequent to, the charge being laid.
New section 17D(2) of the Architects Act 1991, inserted by clause 6 of the Bill, provides that it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce to the ARBV or an appointed person if the production of the document would tend to incriminate the person. This may constitute a limited abrogation of the privilege against self-incrimination because a document required to be produced may contain evidence that would tend to incriminate the person.
The privilege against self-incrimination generally covers the compulsion of any information or documents which might incriminate a person. However, the application of the privilege to pre-existing documents is considerably weaker than that accorded to oral testimony or documents that are required to be brought into existence to comply with a request for information. Some jurisdictions have regarded an order to hand over existing documents as not engaging the privilege against self-incrimination. In my view, even if it does, it is reasonable and justified.
The primary purpose of this limited abrogation is to enable the ARBV to require production of information or documents to support its regulatory activity. Any limitation on the right in section 25(2)(k) is directly related to this purpose. The documents that the ARBV can require to be produced are limited to those necessary for the purposes of determining contravention of or compliance with the regulatory scheme, assisting enforcement of standards of professional conduct and practise for architects, or deciding whether an inquiry should be held into an architect’s fitness to practise or professional conduct. Importantly, the requirement to produce a document to the ARBV does not extend to having to explain or account for the information contained in that document. If such an explanation would tend to incriminate, the privilege would still be available.
There are no less restrictive means available to achieve the purpose of enabling the ARBV to have access to relevant documents, and access to such documents is necessary to enable the ARBV to effectively carry out its regulatory role. To provide for a ‘use immunity’ that restricts the use of produced documents to particular proceedings would unreasonably obstruct the role of the ARBV and the aims of the scheme, as well as give the holders of such documents an unfair forensic advantage in relation to criminal and civil penalty investigations. Any limitation on the right to protection against self-incrimination is therefore appropriately tailored and the least restrictive means to achieve the regulatory purpose.
For the above reasons, I consider that to the extent that new section 17D(2) may impose a limitation on the right against self-incrimination, that limitation is reasonable and justified under section 7(2) of the Charter.
Hon Richard Wynne MP, Minister for Planning
Second reading
That this bill be now read a second time.
I ask that my second-reading speech be incorporated into Hansard.
Incorporated speech as follows:
The Victorian Government is committed to ensuring Victorians can live in houses, townhouses and apartments that are liveable, safe and compliant. The safety of building occupants is our top priority.
The government has progressively implemented a program of industry reform since 2016, including:
• the Building Legislation Amendment (Consumer Protection) Act 2016;
• the Building Amendment (Enforcement and Other Measures) Act 2017;
• the Building Amendment (Registration of Building Trades and Other Matters) Act 2018;
• the Building Regulations 2018 and Plumbing Regulations 2018, following sunset reviews; and
• the Better Apartment Design Standards and Guidelines.
These changes were made to improve industry performance and consumer protection by establishing a new dispute resolution system, modernising the regulation, registration and discipline of building practitioners, and improving apartment design standards.
The Bill amends the Architects Act 1991 and the Building Act 1993 to further implement the government’s commitment to improve the regulatory regime in the building and construction industry. A robust, performance-based legislative framework helps maintain strong and resilient building and plumbing industries and helps Victorians to feel confident in the products and services they provide.
In summary, the Bill will:
• modernise and strengthen the Architects Registration Board of Victoria;
• modernise governance arrangements to strengthen building industry engagement and advice to the Minister for Planning;
• wind up the Building Practitioners Board and transfer inquiries to the Victorian Building Authority (the Authority);
• strengthen financial probity requirements for building practitioners to enable greater scrutiny of company directors, secretaries and influential persons in the registration process and as a ground for disciplinary action;
• introduce a power for the Authority to immediately suspend the licence or registration of a plumbing practitioner on public safety grounds, pending an inquiry process;
• introduce an expiry date for certificates of accreditation issued by the Building Regulations Advisory Committee;
• clarify the specification of builders in relation to specific building work as it applies to partnerships; and
• make minor corrections to provisions of the Building Act that relate to the establishment of a register of private swimming pools and spas.
The Bill will also make minor, technical corrections to the Environment Protection Amendment Act 2018 (EP Amendment Act 2018) to ensure the Environment Protection Act 2017 (EP Act 2017) operates as intended once the amendments in the EP Amendment Act 2018 commence.
Modernise and strengthen the Architects Registration Board of Victoria
The Architects Registration Board of Victoria is the responsible regulator for professional architects. The number of new architects registered in Victoria continues to grow year on year and their role in the design and construction of new buildings or alteration to existing buildings is significant.
However, the legislative framework has not changed significantly since the Board was first established in 1922. Limitations of the legislation in relation to governance arrangements and disciplinary action have constrained the Board in effectively carrying out its regulatory role and meeting community expectations.
The Bill amends the Architects Act to ensure that the Board can effectively respond to present and future challenges with a strengthened regulatory framework.
The Bill replaces the outdated ‘good character’ test with a provision to enable the Board to be satisfied that the architect is a fit and proper person, having regard to a number of probity matters. The Board will be able to consider the probity matters when an application for registration as an architect is made. If the Board becomes aware that the architect ceases to become a fit and proper person, this provides grounds for immediate suspension or cancellation of an architect’s registration.
A key complaint about architects is the lack of knowledge in a number of critical areas, including the National Construction Code. The Board currently has limited powers to impose requirements to ensure that architects are staying up to date with key developments, including products.
The Bill therefore introduces a requirement for architects to comply with any continuing professional development requirements, which are to be prescribed in regulations. Architects will be required to provide written proof of compliance with prescribed requirements by 1 July in each year. Failure to comply with relevant prescribed continuing professional development requirements is a ground for immediate suspension of an architect’s registration.
The Bill aims to improve the robustness and effectiveness of the Board as the key regulator of architects. Currently, the key mechanism for taking disciplinary action against an architect is a review by a tribunal, which is largely focused on complaints and results in lengthy complaint resolution timeframes. The Bill therefore provides a number of grounds on which the Board may immediately suspend the registration of an architect, subject to an inquiry being conducted by a Tribunal.
Currently, the Board may request either a complainant or an architect to provide information or to assist the Board determine if a disciplinary inquiry should be held. The Bill will broaden this power to enable the Board to request information or documents to support all its regulatory activities.
The Bill will also increase the term of appointment for Board members from two to three years, to bring it in line with other regulators. Longer term appointments provide better continuity for the Board, enable members to take a much longer-term view which improves strategic thinking and improve Board cohesion and effectiveness. The Bill will also improve the agility and reactivity of the Board by enabling it to delegate its functions and duties to the Registrar or other officer appointed under the Architects Act.
Modernise governance arrangements to strengthen building industry engagement and advice to the Minister for Planning
The Building Act establishes three advisory bodies to support the Minister for Planning in fulfilling the functions and duties under that Act, including the Building Advisory Council, Plumbing Advisory Council and the Building Regulations Advisory Committee. These bodies largely constitute a legislative industry engagement model, as the members are drawn from across the different elements of the building and plumbing industries. Such engagement is a critical part of an effective process to advise the Minister of issues being experienced by the building sector. However, these arrangements must be fit for purpose.
There is considerable duplication and overlap between the Building Advisory Council and the Building Regulations Advisory Committee, both in terms of its membership and functions. The Bill will therefore abolish the Building Advisory Council and establish a single source of advice on building industry matters by transferring functions to the Building Regulations Advisory Committee. The Bill will also add a new member to be nominated by the Building Designers Association of Victoria, as the key industry stakeholder that is currently represented on the Building Advisory Council but not the Building Regulations Advisory Committee.
The Bill also proposes an additional amendment to remove an anomaly in the Building Act which relates to the remuneration of public sector employees or statutory office holders when appointed to boards and advisory bodies. Decisions around remuneration should be addressed under the Appointment and Remuneration Guidelines 2018 following advice by the Department of Premier and Cabinet. Where it is considered appropriate to appoint public servants to boards or advisory bodies, there should be a parallel decision related to remuneration or allowances. It is rare that legislation puts a prohibition on remuneration and it is believed that its removal will bring the Building Act in line with contemporary approaches that leave such decisions to government.
Wind up the Building Practitioners Board and transfer inquiries to the Authority
Prior to 1 September 2016, the Building Practitioners Board had responsibility for the registration of building practitioners and for the administration of the disciplinary actions against registered building practitioners. The Building Legislation Amendment (Consumer Protection) Act 2016 abolished the Building Practitioners Board and the functions exercised by the Board were transferred to the Authority. However, transitional provisions provided for the Building Practitioners Board to continue to operate for the purpose of concluding any inquiries into the conduct of a building practitioner referred to it before 1 September 2016.
There are several inquiries still to be determined by the Building Practitioners Board, including high-profile disciplinary inquiries into the conduct of building practitioners. These outstanding matters have been affected by significant delays, often due to adjournments and difficulties in rescheduling hearing dates, as well as challenges in relation to the practice and procedure of hearings.
The Bill will therefore amend the Building Act so that outstanding inquiries with the Building Practitioners Board are transferred to and determined by the Authority. The Bill provides that the Authority will determine these matters in accordance with the old provisions of the Building Act that would have applied if the Board were determining the matter. This will ensure the fair, efficient and satisfactory resolution of the outstanding inquiries.
Strengthen financial probity requirements for building practitioners
The government has been made aware that some building companies are deliberately going into external administration to avoid liability for building work following completion of that work. The conduct of illegal phoenix activity—when a new company is created to continue the business of a company that has been deliberately liquidated to avoid paying its debts, including taxes, creditors and employee entitlements—will not be tolerated.
The Bill will amend the financial probity requirements that form part of the fit and proper test for building practitioners to better enable the Authority to examine the conduct of practitioners and determine if they are engaging in a pattern of behaviour that is illegal phoenix activity. The Authority will be able to consider, as part of assessing an application for registration or renewal, if an applicant, or in the case of a body corporate applicant a director of that body corporate, was a director, secretary or influential person of a body corporate for up to two years before that body corporate went into external administration, and if the applicant or director has engaged in a pattern of doing so. In this case, the application for registration or renewal can be refused.
A new definition of ‘influential person’ will be inserted into section 3 of the Building Act to capture individuals who do not act in any official capacity in relation to a body corporate practitioner but exert significant influence on the body corporate practitioner’s business and operations.
In addition, where illegal phoenix activity is detected and the Authority considers the new financial probity requirements of the fit and proper person test are not met, it may choose to instigate disciplinary action following a show cause process. If the Authority makes a finding during the course of disciplinary proceedings that the practitioner, or director of the body corporate practitioner, is not a fit and proper person, the Authority must cancel the practitioner’s registration.
Power to immediately suspend the licence or registration of a plumbing practitioner on public safety grounds
The Bill provides for the Authority to be able to immediately suspend a licensed or registered plumbing practitioner on public interest grounds including, for example, where a practitioner has repeatedly shown a disregard for public health and safety considerations, a lack of concern for potential damage to neighbouring properties or has been subject to multiple disciplinary proceedings.
Introduce an expiry date for certificates of accreditation issued by the Building Regulations Advisory Committee
One of Building Regulations Advisory Committee’s functions is to accredit a building product, construction method, design, component or system connected with building work. Currently, the accreditation remains in force until it is revoked. However, the circumstances in which an accreditation may be revoked are limited, and the onus rests with the Committee to actively investigate and determine whether any of the criteria are met for revocation.
Expiry and renewal of accreditations provides opportunity for review and reassessment of compliance with standards and legislative requirements that may have changed over time, as well as changes in industry practices, technological developments and community expectations. Given inherent defects in building products, such as combustible cladding, the government considers accreditations should be subject to review to validate continued accreditation and support consumer protection.
The Bill will therefore introduce an expiry date for certificates of accreditation issued under the Building Act. Given the potential risk and liability that attaches to accreditation decisions, it is considered this will provide the Building Regulations Advisory Committee (and others) with an opportunity to review the validity of those accreditations currently registered and determine whether they should continue.
The Bill will provide that new accreditations are to remain in force for a period of up to three years unless revoked earlier. Regulations will be made that outline the renewal process for accreditations. Existing accreditations issued on or after 1 January 2019 will be deemed to expire within three years from the date of issue of the certificate of accreditation. The Building Regulations Advisory Committee will be required to provide a notice to accreditation holders advising of this.
For those accreditations issued prior to 1 January 2019, a transition period of six months will apply before an expiry date is applied. Within that six months, the Building Regulations Advisory Committee will write to accreditation holders and seek confirmation that accreditation is still required. If confirmation is provided, the certificate of accreditation will be reissued with a three-year expiry date. If no confirmation is provided, the accreditation will be automatically revoked, and the Building Regulations Advisory Committee will issue a notice to this effect.
Clarify the specification of builders in relation to specific building work as it applies to partnerships
The Bill will amend the Building Act to provide greater clarity on how certain requirements apply where building work is to be carried out by a partnership. This is to address inconsistencies between who is named as building practitioner on a certificate of insurance and a major domestic building contract.
The Bill provides that if the builder is a member of a partnership, the major domestic building contract and the certificate of insurance must both specify the name of the builder and the name of the partnership. Therefore, the relevant building surveyor will be required to check that the names of the builder and the partnership specified on the certificate of insurance are identical to the names of the builder and the partnership specified in the contract.
Minor corrections to provisions regarding the establishment of a register of private swimming pools and spas
The Bill will insert a definition of ‘swimming pool’ into the Building Act that is consistent with the Building Code of Australia definition and includes spas, relocatable swimming pools and relocatable spas. Definitions of ‘relocatable swimming pool’ and ‘relocatable spa’ are also to be inserted.
The Bill also amends the Building Act to:
• make it clear that the regulations may provide for either an indefinite or time limited registration to be granted;
• allow the swimming pool and spa register to include ‘records’ or ‘documents’ as well as information, which will allow for copies of certificates and other documents issued in respect of pools and spas to form part of the register.
Minor, technical amendments to the EP Amendment Act 2018
The Bill will amend the EP Amendment Act 2018 to rectify minor errors in that Act that create inconsistencies and could result in unintended consequences. Rectifying these errors will ensure the EP Act 2017 operates as originally intended upon commencement of the EP Amendment Act 2018.
The Bill will amend the EP Amendment Act 2018 to:
• integrate advertising an environment effects statement under the Environment Effects Act 1978 with advertising of a development licence under the EP Amendment Act 2018 to ensure that the provisions exempting a decision on the development licence from review by the Victorian Civil and Administrative Tribunal are functionally the same as those for a works approval decision under the current Environment Protection Act 1970;
• ensure that references to procedures and processes under the Environment Effects Act are correctly aligned with the provisions of and practices under that Act; and
• clarify that the Environment Protection Authority or a council is able to amend a licence or permit to add conditions, in addition to amending and revoking conditions.
I commend the Bill to the house.
Ms McLEISH (Eildon) (10:36): I move:
That the debate be now adjourned.
Motion agreed to and debate adjourned.
Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday, 13 November.