Building Legislation Amendment (Consumer Protection) Bill 2015

Introduction Print

EXPLANATORY MEMORANDUM

General

The Building Legislation Amendment (Consumer Protection) Bill 2015 (the Bill) will amend the Building Act 1993, the Domestic Building Contracts Act 1995 and the Victorian Civil and Administrative Tribunal Act 1998 to implement the first tranche of reforms designed to achieve the Government's commitment to improve protection from home building malpractice and make several other reforms to building-related legislation.

The key reforms proposed by the Bill are to—

Improve conciliation of domestic building disputes

The Bill will establish a new conciliation framework for domestic building disputes that will see the establishment of Domestic Building Dispute Resolution Victoria and give the parties to the dispute greater incentives to resolve disputes earlier and more cost effectively.

Enable the issue of dispute resolution orders

The Bill will enable the issue of dispute resolution orders to domestic builders and consumers as a means of resolving matters in contention in a domestic building dispute. These orders can require the rectification of defective work and the payment of money.

Improve information provision for consumers

The Bill will require builders to give information to consumers about domestic building before entering into a major domestic building contract.

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Strengthen registration requirements

The Bill will impose stronger registration requirements, introducing time-limited registrations and enabling the regulations to specify in greater detail what a specified class of registration authorises a person to do. The Bill will also impose greater restrictions on the carrying out of domestic building work unless a builder is registered in a category or class of registration that authorises the carrying out of that work.

Improve discipline of building practitioners

The Bill will enable the Victorian Building Authority (VBA) to issue a show cause notice to a registered building practitioner if the VBA reasonably believes a ground exists for taking disciplinary action. Applicants who are dissatisfied with the outcomes of a show cause process can seek internal review and review by the Victorian Civil and Administrative Tribunal (VCAT).

Make improvements to the governance arrangements for building practitioners' registration and discipline

The Bill will abolish the Building Practitioners Board (BPB). The functions exercised by the BPB will be transferred to the VBA.

Give building surveyors and the VBA improved powers to direct builders to fix non-compliant building work

The Bill will strengthen powers to give directions with respect to building work and ensure various orders made by building surveyors and the VBA can be exercised more appropriately.

Provide greater assurance that owner-builders are appropriately qualified to build homes

The Bill will introduce a range of measures to ensure owner-builders are appropriately qualified to build homes, and that unregistered builders cannot use owner-builder status to avoid registration.

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Improve responsiveness to consumer needs by ensuring business continuity of private building surveyors

The Bill will establish a power for the VBA to appoint a manager of a private building surveying business where the private building surveyor has ceased to function and has failed to make alternative arrangements. Examples where a manager may be appointed are where the building surveyor has died, been suspended or become insolvent. This will enable the completion of the private building surveyor's work.

Ensure greater oversight of building work

The Bill will strengthen incentives for owners and building practitioners to ensure that building permits are in place for building work, and that building work complies with the Building Act 1993, building regulations and the building permit.

Clause Notes

Part 1—Preliminary

Clause 1 sets out the main purposes of the Bill, which are to amend the Domestic Building Contracts Act 1995 and the Building Act 1993 and to make consequential amendments to the Victorian Civil and Administrative Tribunal Act 1998.

The Bill amends the Domestic Building Contracts Act 1995 (the DBCA) to enhance consumer protection in relation to domestic building work by providing for new processes for the resolution of domestic building disputes, and to improve generally the operation of that Act.

The Bill amends the Building Act 1993 (the Building Act)—

to enhance consumer protection in relation to domestic building work by improving the regulation of building practitioners, particularly builders carrying out domestic building work and building surveyors; and

to provide for further regulation of owner-builders; and

to abolish the BPB and provide for its functions to be carried out by the VBA; and

to improve generally the operation of the Building Act.

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The Bill makes consequential amendments to the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act).

Clause 2 provides for the commencement of the Bill once enacted. The Bill will come into operation on a day or days to be proclaimed. If a provision of the Bill is not proclaimed before 1 July 2017, it will come into operation on that day. This is intended to ensure that the VBA and Consumer Affairs Victoria (CAV) have adequate time to prepare for the implementation of the measures contained in the Bill.

Part 2—Resolution of Domestic Building Work Disputes

Division 1—Amendments to Domestic Building Contracts Act 1995

Division 1 of Part 2 contains clauses 3 to 12, which set out the amendments to the DBCA.

Clause 3 inserts definitions of various words and expressions into section 3(1) of the DBCA, including certificate of conciliation, dispute resolution order, and domestic building work dispute.

Clause 4 amends section 6 of the DBCA, which sets out the work to which the DBCA applies.

Subclause (1) repeals section 6(a), which provides that the DBCA does not apply to any work that the regulations state is not building work to which the DBCA applies.

Subclause (2) inserts new section 6(2), that essentially preserves the effect of former section 6(a) but enables greater flexibility by further providing that a provision of the DBCA does not apply to any work that the regulations state is not building work to which the provision applies.

Clause 5 inserts new section 29A into the DBCA, which provides that a builder must not enter into a major domestic building contract unless the builder has first given to the building owner a contract information statement. A penalty of up to 60 penalty units applies if this requirement is contravened. The statement must be in a form approved by the Director of Consumer Affairs Victoria (Director of CAV) after consulting with the VBA.

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Clause 6 repeals Parts 3A and 4 of the DBCA, which relate to conciliation of domestic building work disputes and the appointment and powers of inspectors to examine domestic building work, and substitutes a new Part 4. New Part 4 sets out new processes for the resolution of domestic building work disputes.

Division 1—Preliminary

Division 1 sets out preliminary matters under Part 4.

New section 44 sets out what is a domestic building work dispute.

Subsection (1) provides that a domestic building work dispute in Part 4 is a domestic building dispute arising between a building owner and a builder, a building practitioner (as defined in the Building Act), a sub-contractor, or an architect, in relation to a domestic building work matter.

Subsection (2) provides that, in Part 4, a domestic building work matter means any matter relating to a domestic building contract or the carrying out of domestic building work, and sets out various matters that constitute a domestic building work matter.

New section 44 will not limit the discretion of VCAT under section 60 of the VCAT Act to join any other party to a proceeding in relation to a domestic building work dispute.

Division 2—Referral of domestic building work disputes

Division 2 sets out procedures for referral of domestic building work disputes.

New section 45 provides that a party to a domestic building work dispute (the referring party) may refer the dispute to the chief dispute resolution officer. The referral must meet the formal requirements set out in subsection (2).

Subsection (3) provides that a domestic building work dispute must be referred to the chief dispute resolution officer—

within 10 years of the date of issue of the occupancy permit under the Building Act in relation to the domestic building work (whether or not the permit is subsequently cancelled or varied); or

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where an occupancy permit is not issued, within 10 years of the date of issue under Part 4 of the Building Act of the certificate of final inspection for the building work; or

where there is no occupancy permit or certificate of final inspection, within 10 years of the date of practical completion; or

if a date of practical completion cannot be ascertained, 10 years after the domestic building contract was entered into.

Subsection (4) creates rebuttable presumptions as to when a date of practical completion occurs.

Subsection (5) provides that a party may not refer a domestic building work dispute under this section if proceedings in relation to the matter in dispute have commenced in VCAT or in a court.

Subsection (6) defines what will constitute the date of practical completion.

New section 45A provides that a conciliation officer nominated by the chief dispute resolution officer must make an initial assessment of a referral made under section 45 to determine whether—

the dispute referred is a domestic building work dispute; and

the referral was made within the required time; and

at least one of the parties to the dispute appears willing to participate in good faith; and

proceedings in relation to the matter have commenced in VCAT or in a court.

New section 45B provides for the powers of the conciliation officer in making an assessment under section 45A.

Subsection (1) authorises the conciliation officer to—

make any inquiries or obtain any information they consider necessary; and

ask the referring party to provide further information or documents relating to the dispute; and

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require the referring party to provide evidence that the party has taken reasonable steps to resolve the dispute with the other parties to the dispute.

Subsection (2) authorises a conciliation officer to fix a time for compliance with a request or requirement made under subsection (1) and to extend that time on the request of the referring party.

Subsection (3) provides that if a conciliation officer considers it appropriate to do so, they may ask any other party to the domestic building work dispute to participate in a conciliation of the dispute.

New section 45C sets out procedures for the acceptance or rejection of a referral.

Subsection (1) requires the conciliation officer to make a recommendation to the chief dispute resolution officer to accept or reject the referral.

Subsection (2) provides that, after considering the recommendation made under subsection (1), the chief dispute resolution officer may accept the referral or, if the chief dispute resolution officer assesses that the dispute is not suitable for conciliation, reject the referral.

Subsection (3) sets out the grounds on which the chief dispute resolution officer may assess a referred dispute as not suitable for conciliation—

the referral does not comply with the requirements of section 45(2); or

the referral was not made within the required time; or

the referring party did not provide any information, documents or evidence requested or required under section 45B or did not provide them within the time required by the conciliation officer; or

the referring party has failed without reasonable excuse to take reasonable steps to resolve the dispute before the referral; or

all issues arising out of the dispute have been or are the subject of proceedings before VCAT or a court; or

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there is no reasonable likelihood of the dispute being settled by conciliation for any reason other than because no other party is willing to engage in conciliation; or

the referral—

is frivolous or otherwise lacking in substance; or

is vexatious; or

was not made in good faith; or

the dispute has been resolved.

New section 45D sets out how the chief dispute resolution officer may deal with a referral of a domestic building work dispute where more than one matter in dispute is referred.

Subsection (1) provides that if more than one matter in dispute is referred, the chief dispute resolution officer may sever from the referral any matter that they would reject under section 45C if it were the only matter that had been referred.

Subsection (2) provides that where a referral relates to more than one matter or the matter referred relates to more than one circumstance, the chief dispute resolution officer may separate the referral into two or more referrals if—

a conciliation officer's inquiries into some of the matters have not been completed and it is convenient to separate them; or

it is in the public interest to do so.

Subsection (3) provides that where the chief dispute resolution officer accepts more than one referral in relation to the same or related domestic building work, they may decide to deal with the referrals together as if they were one referral.

New section 45E sets out the requirements for the chief dispute resolution officer to give notice of a decision under section 45C or 45D.

Subsection (1) provides that the chief dispute resolution officer must give written notice of a decision under section 45C or 45D to each party to a referred dispute within 10 business days after making the decision.

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Subsection (2) provides that if the chief dispute resolution officer decides to accept a referral, the notice must—

include an outline of the referring party's stated reasons for the dispute; and

state that the dispute has been referred to a conciliation officer.

Subsection (3) provides that if the chief dispute resolution officer decides to reject a referral or any matter referred, the notice under subsection (1) must include the reasons for the decision.

Subsection (4) provides that if the chief dispute resolution officer decides to sever any matter from a referral or to separate or combine referrals, the notice must include the reasons for the decision.

New section 45F requires the chief dispute resolution officer to issue a certificate of conciliation where the chief dispute resolution officer assesses a domestic building work dispute or a matter as not suitable for conciliation.

Subsection (1) provides that where the chief dispute resolution officer assesses a dispute or matter as not suitable for conciliation the chief dispute resolution officer must issue a certificate of conciliation certifying that—

the dispute or matter was referred under section 45; and

the chief dispute resolution officer has assessed the dispute or matter as not suitable for conciliation.

Subsection (2) requires that the certificate of conciliation be issued within 10 business days after written notice of the decision to reject the referral is given to each party under section 45E.

Subsection (3) provides that the certificate of conciliation must specify the chief dispute resolution officer's reasons for assessing the dispute as not suitable for conciliation.

Subsection (4) requires that the chief dispute resolution officer give a copy of the certificate of conciliation as soon as practicable to each party to the dispute.

Subsection (5) enables a party to a domestic building work dispute to apply to VCAT for review of a failure to issue a certificate of conciliation under the section. It is intended that a

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review under this section will be heard by VCAT under its review jurisdiction.

New section 45G provides for withdrawals of referrals.

Subsection (1) provides that a party who referred a domestic building work dispute to the chief dispute resolution officer may seek to withdraw the referral or any matter referred by giving notice to the chief dispute resolution officer before the dispute is finally dealt with under Part 4 of the DBCA.

Subsection (2) provides that the chief dispute resolution officer may accept or refuse to accept the withdrawal.

Subsection (3) provides that, without limiting subsection (2), the chief dispute resolution officer may refuse to accept a withdrawal if they consider that the dispute has disclosed evidence of a contravention of—

the DBCA or the regulations under the DBCA; or

the Building Act or the regulations under that Act.

Subsection (4) provides that the chief dispute resolution officer must give written notice to each party to a referred dispute of a decision to accept or refuse a withdrawal, within 10 business days after receiving the notice under subsection (1).

Subsection (5) provides that a certificate of conciliation cannot be issued in respect of a dispute or matter if the chief dispute resolution officer has accepted the withdrawal of the referral of that dispute or matter.

Division 3—Conciliation of domestic building work disputes

Division 3 sets out procedures for the conciliation of domestic building work disputes.

New section 46 requires the chief dispute resolution officer to refer the dispute to a conciliation officer for conciliation under Division 3 if the dispute is accepted for conciliation.

New section 46A sets out how a conciliation conference may be conducted and the notices that the chief conciliation officer must provide.

Subsection (1) provides that section 46A applies if a conciliation officer decides to conduct a conciliation conference.

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Subsection (2) provides that a conciliation conference may be conducted—

by attendance of the parties in person at a place that is reasonably convenient for the parties and which may be the building site at which the domestic building work that is the subject of the dispute is being or was being carried out or elsewhere; or

by post, teleconference or other electronic communication; or

by a combination of those methods.

Subsection (3) requires that the conciliation officer give written notice of the conciliation conference to each party to the dispute.

Subsection (4) provides that the notice must specify—

the date and time of the conference; and

if the conference is to be conducted at a particular place, that place; and

if the conference is to be held by post, the address or addresses to which written communications are to be sent; and

if the conference is to be held by electronic communication, the method by which participation in the conference is to be effected.

Subsection (5) requires the notice to include a statement that the chief dispute resolution officer may issue a certificate of conciliation, direct an assessor and issue a dispute resolution order if the parties do not participate and the matter concerns defective building work or an alleged failure to complete domestic building work.

New section 46B requires that a conciliation officer must conduct a conciliation, and may issue directions to the parties to a dispute, in accordance with conciliation rules to be approved by the Director of CAV and published on the CAV website.

New section 46C addresses statements made during conciliation.

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Subsection (1) provides that anything said or done by the parties or the conciliation officer during conciliation is not admissible in any proceeding before VCAT under Part 5 of the DBCA or in any other legal proceeding unless all the parties to the dispute agree in writing to the giving of the evidence.

Subsection (2) provides that subsection (1) does not apply to—

any written communication from the conciliation officer to any of the parties to the dispute; or

anything said or done by an assessor appointed under Division 5; or

any report produced for the purpose of the conciliation by an assessor appointed under Division 5.

Subsection (3) provides that nothing in the section prevents the use of any information or document disclosed in a conciliation for the purposes of—

determining whether to make a dispute resolution order under Part 4; or

any disciplinary proceedings under Part 11 of the Building Act in respect of a contravention of the DBCA or the regulations or the Building Act or the regulations made under that Act.

A note following the section clarifies that clause 12A(3) of Schedule 1 to the VCAT Act (to be inserted by clause 14 of the Bill) limits the ability of VCAT to request information from the Director of CAV in respect of information that is inadmissible under section 46C.

New section 46D provides that where a dispute has been accepted for, but not resolved, by conciliation, the chief dispute resolution officer is to give notice of a proposed certificate of conciliation to the parties.

Subsection (2) provides that the chief dispute resolution officer must give each party to the dispute written notice that the chief dispute resolution officer proposes to issue a certificate of conciliation in relation to the dispute.

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Subsection (3) provides that the notice must include a copy of the proposed certificate of conciliation that must state—

that the dispute was not resolved by conciliation; and

the reasons why the dispute was not resolved.

Subsection (4) provides that the notice must state that each party may make submissions to the chief dispute resolution officer in relation to the contents of the proposed certificate within the period specified in the notice (not being less than 10 business days).

New section 46E provides for certificates of conciliation in respect of domestic building work disputes where a dispute is accepted for conciliation.

Subsection (1) provides that the chief dispute resolution officer must issue a certificate of conciliation after considering any submissions received within the time required under section 46D if they are satisfied that the domestic building work dispute has not been resolved.

Subsection (2) requires that the certificate of conciliation must state that—

the chief dispute resolution officer had received a referral of a domestic building work dispute; and

the chief dispute resolution officer had accepted the dispute for conciliation; and

the dispute was not resolved by conciliation.

Subsection (3) provides that the certificate of conciliation may include a statement of the reasons why the dispute was not resolved which may include a statement by the chief dispute resolution officer that, in their opinion, an identified party did not participate in the conciliation or did not participate in good faith.

Subsection (4) requires that the chief dispute resolution officer give a copy of the certificate of conciliation as soon as practicable to each party to the domestic building work dispute.

Subsection (5) enables a party to apply to VCAT for a review of a failure by the chief dispute resolution officer to issue a certificate of conciliation under the section within 20 business days of the period specified in the notice under section 46D(4).

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It is intended that a review under this subsection will be considered by VCAT under its review jurisdiction.

New section 46F provides for a written record of agreement to be prepared where a domestic building work dispute is resolved by conciliation.

Subsection (2) provides that the conciliation officer must prepare a written record of agreement setting out the terms of the agreement for the resolution of the dispute, including—

the action, if any, to be taken by each party to the dispute, which may include the making of a payment; and

the time within which the action is to be taken.

Subsection (3) provides that the chief dispute resolution officer must—

keep the record of agreement; and

give a copy of the record of agreement to each party to the dispute.

Subsection (4) provides that a party to the dispute may give notice in writing to the chief dispute resolution officer of any error or omission at any time before the end of the time specified in the record of agreement for taking action.

Subsection (5) provides that the chief dispute resolution officer may make any corrections to the record of agreement they consider appropriate to rectify an error or omission and must give written notice to each party to the dispute of each correction.

Subsection (6) provides that a record of agreement is evidence of the terms of the agreement for the resolution of the domestic building work dispute to which it relates.

New section 46G provides for notice to the chief dispute resolution officer of a failure to comply with a conciliated agreement.

Subsection (1) provides that a party to a domestic building work dispute may give written notice to the chief dispute resolution officer if an action in a record of agreement for the dispute has not been taken within the time specified in the record of agreement.

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Subsection (2) requires that the notice must state the extent of any partial compliance with the required action.

New section 46H provides for the chief dispute resolution officer to give a notice of non-compliance.

Subsection (1) provides that if, on receiving a notice under section 46G, the chief dispute resolution officer determines that the action was not taken within the required time, the record of agreement ceases to have effect and the chief dispute resolution officer must give written notice of that non-compliance to each party to the domestic building work dispute.

Subsection (2) provides that the notice under subsection (1) must state the extent of any partial compliance with the required action.

Division 4—Requirement to stop domestic building work

Division 4 of Part 4 of the DBCA authorises the chief dispute resolution officer to issue a requirement to stop domestic building work in certain circumstances.

New Division 4 deals with requirements to stop building work.

New section 47 provides that Division 4 applies if a domestic building work dispute is referred to the chief dispute resolution officer under Division 2 of Part 4.

New section 47A provides that, at any time after the referral, the chief dispute resolution officer may, by written notice to the builder, require the builder to stop—

all domestic building work under the domestic building contract; or

the domestic building work under the domestic building contract that is specified in the notice—

for a period not exceeding 30 days if the chief dispute resolution officer considers that any of the criteria in subsection (2) are met.

Subsection (2) provides that the notice is to be called a stop work notice and may be given if the chief dispute resolution officer considers that—

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there is a reasonable possibility that evidence relevant to the matters in dispute may be lost or become impractical to obtain if the domestic building work were to continue; or

it is appropriate for any other reason to give the notice.

Subsection (3) provides that a stop work notice has effect for the period, not exceeding 30 days, specified in the notice. However, nothing in section 47A prevents more than one stop work notice being issued by the chief dispute resolution officer to a builder.

New section 47B(1) provides that if they consider that it is appropriate to do so, chief dispute resolution officer may, by written notice given to the builder, extend the period that the requirement has effect for a further period not exceeding 30 days.

Subsection (2) provides that a notice under subsection (1) may vary requirements in the stop work notice.

Subsection (3) provides that the chief dispute resolution officer may cancel a stop work notice at any time by written notice given to the builder.

New section 47C(1) provides that the chief dispute resolution officer must give a copy of each stop work notice to all parties to the domestic building work dispute.

Subsection (2) provides that a stop work notice takes effect on being given to the builder.

Subsection (3) provides that the stop work notice ceases to have effect on the issuing of a certificate of conciliation under section 45F in respect of the domestic building work dispute.

Subsection (4) ensures that the period in which work must be stopped is excluded from the time within which the domestic building work must be completed under the domestic building contract.

New section 47D(1) provides that a builder must comply with a requirement to stop work in a notice to the builder under Division 4. Failure to comply with the requirement of a notice is an offence with a penalty of up to 60 penalty units.

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Subsection (2) provides that subsection (1) does not apply if the building work carried out after the receipt of the stop work notice was reasonably necessary to protect the safety of any person or property. It is intended that subsection (2) place an evidentiary burden on a builder who asserts that their non-compliance with a stop work notice was reasonably necessary to protect the safety of any person or property.

Division 5—Assessment of domestic building work

Division 5 of Part 4 of the DBCA provides for the assessment of domestic building work.

New section 48(1) provides that the Director of CAV, on the recommendation of the chief dispute resolution officer, may appoint as an assessor—

an architect registered under the Architects Act 1991; or

a building practitioner registered under the Building Act in a prescribed category or class; or

a person in a prescribed class of persons.

Subsection (2) provides that a person appointed under subsection (1) may be a person employed under Part 3 of the Public Administration Act 2004 or a person engaged for that purpose by the Director of CAV.

New section 48A provides that the functions of assessors are to assess whether domestic building work is defective or incomplete where required under the DBCA, and to carry out any other function conferred under the DBCA or the regulations or any other Act or the regulations under that Act.

New section 48B(1) provides that the chief dispute resolution officer may direct an assessor to inquire into a domestic building work dispute.

Subsection (2) provides that the direction must be in writing and may require the assessor—

to examine the domestic building work to determine whether the building work performed by the builder is defective or incomplete; and

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if the assessor believes that the domestic building work is defective or incomplete, to estimate the number of business days required to rectify or complete the work.

New section 48C authorises a party to a domestic building contract to ask the chief dispute resolution officer to direct an assessor to inquire into the dispute.

Subsection (1) provides that the section applies if a dispute was referred to the chief dispute resolution officer under Division 2 of Part 4 and—

the referral was rejected by the chief dispute resolution officer; or

the referral was accepted for conciliation but was not resolved by conciliation and an assessor has not already been directed by the chief dispute resolution officer to inquire into the dispute.

Subsection (2) provides that a party to the domestic building contract may ask the chief dispute resolution officer to direct an assessor to inquire into whether work performed under the contract was defective or incomplete.

Subsection (3) provides that a request under subsection (2) must be accompanied by the prescribed fee (if any).

Subsection (4) provides that on receiving that request and any prescribed fee, the chief dispute resolution officer may direct an assessor to inquire into the domestic building work.

New section 48D provides entry powers for assessors.

Subsection (1) provides that an assessor who is directed under section 48B to inquire into a domestic building work dispute may, at any reasonable time, enter and examine any relevant part of the building site at which the work that is the subject of the dispute is being, or has been, carried out.

Subsection (2) requires that, if the relevant part of the building site is being used as a residence, an assessor may only enter and examine that part of the building site with the consent of the occupier.

Subsection (3) provides that an assessor who is seeking to enter a part of a building site that is being used as a residence must inform the occupier—

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that the consent of the occupier is required before the assessor may enter that part of the site; and

that the failure of the occupier to provide the consent may be a ground for the issue of a certificate of conciliation that the dispute was not resolved by conciliation; and

if the occupier is the owner, that the certificate of conciliation may include a statement that the owner did not participate in the conciliation in good faith.

Subsection (4) provides that a failure by the occupier of a residence on a building site to provide consent under section 48D is a ground for—

the issue of a certificate of conciliation stating that the dispute was not resolved by conciliation; and

if the occupier is also the owner, the inclusion in the certificate of conciliation of a statement that the owner did not participate in the conciliation in good faith.

New section 48E deals with assessors' powers to examine work.

Subsection (1) provides that an assessor may cause any domestic building work to be demolished, opened or cut into if this is reasonably required to facilitate an examination of the work.

Subsection (2) provides that an assessor may take photographs (including video recordings) or make sketches of the building site or the domestic building work being examined.

New section 48F empowers assessors to require the production of documents.

Subsection (1) provides that an assessor who enters a building site under section 48D may, to the extent reasonably necessary to determine whether domestic building work is defective or incomplete, require a person at the building site to—

give information to the assessor, orally or in writing; and

produce documents to the assessor; and

give reasonable assistance to the assessor.

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Subsection (2) provides that if a person produces a document to an assessor in accordance with a requirement under the section, the assessor may make copies of, or take extracts from, the document.

New section 48G makes it an offence to, without reasonable excuse, refuse or fail to comply with a requirement of an assessor under Division 5. A penalty of up to 60 penalty units applies.

New section 48H(1) provides that it is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person may be required to do under Division 5 on the ground of self-incrimination.

Subsection (2) provides that despite the protection against self-incrimination afforded in subsection (1), a person cannot rely on the protection against self-incrimination in relation to the production of documents that the person may be required to produce by or under Division 5.

New section 48I makes it an offence to, without reasonable excuse, hinder or obstruct an assessor exercising any power conferred by Division 5. A penalty of up to 60 penalty units applies.

New section 48J empowers assessors to conduct tests and obtain expert advice.

Subsection (1) provides that the section is subject to sections 48K and 48M, which relate to costs.

Subsection (2) provides that in conducting an examination, an assessor may—

conduct any test authorised by the regulations;

obtain expert advice.

New section 48K provides that the costs of the preparation of a report, including any examination, test or advice obtained, by an assessor in relation to domestic building work are payable by a party to a domestic building work dispute that was subject to conciliation if—

written notice of a conciliation was given to the party; and

the party, without reasonable excuse, failed to participate in the conciliation conference; and

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a dispute resolution order is issued against the party because the building work was defective or incomplete.

New section 48L applies where an assessor is directed to inquire into domestic building work at the request of a party to a domestic building contract under section 48C.

Subsection (2) provides that an assessor must give written notice to the party if the assessor considers a test or expert advice is needed for the purpose of an examination of domestic building work and ask the party to agree to the conduct of the test or the obtaining of the expert advice.

Subsection (3) provides that the assessor may discontinue the examination if the party does not agree to the conduct of the test or the obtaining of the expert advice.

New section 48M provides that the requesting party referred to in section 48L is liable for the costs of any tests conducted, or the obtaining of expert advice, under section 48J that are agreed to by the party, and of making good any damage caused by any tests conducted under section 48J that are agreed to by that party.

New section 48N(1) allows for the Director of CAV to recover any costs payable by a party under Division 5 as a debt due to the State.

Subsection (2) provides that the Director must pay any costs recovered under the section into the Domestic Builders Fund established under the DBCA.

New section 48O provides for reporting the results of an examination conducted by an assessor.

Subsection (1) provides that after conducting an examination, the assessor must report the results of the examination to the parties to the dispute and to the chief dispute resolution officer.

Subsection (2) provides that the report must be in writing in a form approved by the Director of CAV.

Subsection (3) provides that, subject to subsection (4), the assessor is not required to give a report under this section if—

the examination was for the purposes of a conciliation; and

a record of agreement was made as a result of the conciliation conference.

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Subsection (4) provides that the chief dispute resolution officer may direct an assessor to prepare a report under the section if the chief dispute resolution officer has been given notice under section 46G of non-compliance with an action required in a record of agreement.

Subsection (5) provides that on a direction under subsection (4), the assessor must—

prepare the report within the time required in the direction; and

give a copy of the report, without delay, to—

each party to the dispute; and

the chief dispute resolution officer.

Subsection (6) provides that a party to a dispute may make a written submission to the chief dispute resolution officer in relation to a report within the prescribed period after the report is given to the party under the section.

Subsection (7) provides that the prescribed period is the longer of the period prescribed by the regulations (if any) or 5 business days.

New section 48P requires that, if as a result of an examination the assessor considers that the domestic building work examined is not defective or incomplete, the report under section 48O must include a statement to that effect.

New section 48Q sets out the required contents for a report under section 48O if the building work examined is defective or incomplete.

Subsection (1) provides that the section applies, if as a result of an examination, the assessor considers that the building work examined is defective or incomplete.

Subsection (2) provides that the report must—

specify the work that is defective or incomplete, including—

any defects that may adversely affect—

the health or safety of people who may use the building to which the work relates; or

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the amenity of that building; and

any other defects in the building work that are incidental to, but not the subject of, the dispute; and

if required by the chief dispute resolution officer under section 48B, also include an estimate of the number of business days required to rectify or complete the building work.

Subsection (3) provides that in the report the assessor may—

specify the cause of the defective or incomplete building work; and

recommend a preferred method by which the defective or incomplete work may be rectified or completed.

Subsection (4) provides that in making a recommendation under subsection (3), the assessor must have regard to—

the relevant domestic building contract, including the plans and specifications set out in the contract; and

any other matters that the assessor considers relevant.

Subsection (5) provides that, if the assessor is of the opinion that the building work is so defective that it would not be appropriate to allow the builder to rectify or complete the work, the report may include a statement to that effect.

New section 48R provides for assessors to report contraventions of building legislation to the VBA.

Subsection (1) provides that if, as a result of an examination the assessor is of the opinion that there has been a failure to comply with the Building Act (or any regulations made under that Act) with respect to any domestic building work, the assessor must—

state that opinion in a written report; and

provide a copy of the report to the VBA within 5 business days after preparing the report.

Subsection (2) provides that the VBA may refer details of the alleged contravention to the relevant council and the relevant building surveyor in relation to the building work.

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New section 48S provides that carrying out of the recommendations contained in a report pursuant to section 48Q(3) does not absolve the builder from completing the domestic building contract in accordance with the plans and specifications set out in the contract.

New section 48T provides that an assessor's report under section 48O is admissible in evidence in proceedings before VCAT or any other legal proceedings.

Division 6—Dispute resolution orders

Division 6 of Part 4 sets out provisions concerning dispute resolution orders.

Subdivision 1—Issue of dispute resolution orders

New section 49 deals with the issuing of dispute resolution orders.

Subsection (1) provides that the chief dispute resolution officer may issue a dispute resolution order to a builder or a building owner who is a party to a domestic building work dispute if—

the dispute was referred to the chief dispute resolution officer under Division 2 for conciliation; and

the chief dispute resolution officer is satisfied that the parties have not resolved the dispute; and

the dispute relates to one or more of the following—

an alleged breach of a warranty set out in section 8;

an alleged failure to maintain the standard or quality of building work specified in a domestic building contract;

an alleged failure to complete the domestic building work required by a domestic building contract;

an alleged failure to complete the domestic building work required by a domestic building contract within the times specified in the contract;

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an alleged failure to pay money for domestic building work performed under the contract;

any other prescribed matter.

Subsection (2) provides that if the chief dispute resolution officer receives a copy of an assessor's report under Division 5 in relation to a domestic building work dispute, the chief dispute resolution officer must not issue a dispute resolution order earlier than 10 business days after the last of the parties is given a copy of the assessor's report in relation to that dispute.

Subsection (3) provides that, despite subsection (1), the chief dispute resolution officer may issue a dispute resolution order even if a record of agreement exists in relation to the domestic building work dispute if the assessor's report states that there has been a contravention of—

the DBCA or the regulations; or

the Building Act or the regulations under that Act.

Subsection (4) provides that, subject to subsections (5) and (6), a dispute resolution order takes effect immediately on being served on the person to whom it is issued.

Subsection (5) provides that subsection (4) does not apply to a dispute resolution order referred to in section 49D. Section 49D provides for a dispute resolution order to include a finding that domestic building work is so defective that it would not be appropriate to allow the builder to rectify or complete the work.

Subsection (6) provides that if an application for review of a decision to issue a dispute resolution order is made to VCAT under section 63, the operation of the order is stayed pending the outcome of the review.

New section 49A(1) lists matters to be considered by the chief dispute resolution officer before issuing a dispute resolution order. In determining whether to issue a dispute resolution order, the chief dispute resolution officer may consider the following matters—

any change in the nature of the domestic building work dispute or the circumstances of the parties since the copy of the assessor's report was given to the chief dispute resolution officer under Division 5, including

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the extent of any partial performance of an action specified in a record of agreement;

the conduct of the parties during the conciliation (if applicable);

any direction to fix building work given under Division 2 of Part 4 of the Building Act in relation to the building work that is the subject of the dispute (see clause 49);

any other matter the chief dispute resolution officer considers relevant.

Subsection (2) provides that, in addition to any matters in subsection (1), the chief dispute resolution officer may consider whether the issuing of a dispute resolution order to a person would be unfair or unreasonable in the circumstances.

New section 49B deals with the contents of dispute resolution orders.

Subsection (1) provides that a dispute resolution order may require a builder to whom it is issued to take any action or the action specified in the order to do one or more of the following—

rectify any defective domestic building work;

rectify any damage caused in the carrying out of the domestic building work or by the defective domestic building work;

complete the domestic building work under the domestic building contract.

Subsection (2) provides that a dispute resolution order may require a building owner to whom it is issued to comply with specified conditions if the builder is required to comply with a dispute resolution order.

Without limiting subsection (2), subsection (3) provides that the conditions may include the following—

a condition to refrain from doing anything that would prevent or restrict the builder from satisfying a term or condition of the domestic building contract or carrying out domestic building work to meet the requirements of a warranty set out in section 8;

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a condition requiring a building owner to pay money into the Domestic Building Dispute Resolution Victoria Trust Fund.

Subsection (4) provides that a dispute resolution order under subsection (1) must specify the period within which the requirements for the rectification or completion of work must be complied with.

Subsection (5) provides that a person required to comply with a dispute resolution order issued under subsection (1) must—

carry out the work if they are a registered building practitioner authorised under the Building Act to carry out that work; or

cause the work to be carried out by a person who is a registered building practitioner authorised under the Building Act to carry out that work.

New section 49C deals with requirements for the payment of money.

Subsection (1) provides that a dispute resolution order may require—

a building owner to pay an amount to the builder for completion of the domestic building work under the contract or any part of the contract; or

a building owner to pay an amount of money into the Domestic Building Dispute Resolution Victoria Trust Fund to be paid to the builder on completion of the domestic building work under the contract or any part of the contract; or

the builder to pay the reasonable cost of domestic building work to be carried out by another builder appointed by the building owner if a dispute resolution order—

requires a builder to rectify or complete the domestic building work; and

includes a finding that the domestic building work carried out by the builder is so defective that it would not be appropriate to allow the builder to rectify or complete the work.

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Subsection (2) provides that a dispute resolution order issued under the section may impose conditions that must be met by another party to the dispute before the requirement to pay money takes effect.

New section 49D provides that a dispute resolution order may include findings.

Subsection (1) provides that a dispute resolution order may include a finding that the domestic building work is not incomplete or defective.

Subsection (2) provides that a dispute resolution order may include a finding that the domestic building work is so defective that it would not be appropriate to allow the builder to rectify or complete the work.

Subsection (3) provides that a finding referred to in subsection (1) or (2) in a dispute resolution order is evidence in any proceedings by the builder for the recovery of money from a party to the dispute, and must be taken into account in any proceedings in VCAT or a court in determining costs or damages.

New section 49E provides that the rectification or completion of domestic building work in compliance with a dispute resolution order does not absolve the builder from completing the domestic building contract in accordance with the plans and specifications set out in the contract.

New section 49F provides that, if a dispute resolution order is issued to a builder, the chief dispute resolution officer must notify the insurer who provided the builder with the required insurance under the Building Act of the dispute resolution order and the builder's compliance with or failure to comply with the order.

Subsection (2) provides that the notice must be given after the time for the builder to comply with the order has expired.

New section 49G provides for payment out of the Domestic Building Dispute Resolution Victoria Trust Fund.

Subsection (1) enables the Director of CAV to pay out of the Fund an amount paid into the Fund in compliance with a dispute resolution order.

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Subsection (2) provides that, in determining whether a dispute resolution order or part of an order has been complied with, the Director of CAV may rely on a statement by the party who paid the amount into the Fund that the dispute resolution order or the part of the order has been complied with.

Subsection (3) provides that, if the Director of CAV proposes to pay an amount out of the Fund in accordance with subsection (1), the Director must give written notice to the parties to the dispute of the intention to pay the amount out of the Fund.

Subsection (4) provides that the notice must state that a party to the dispute may apply to VCAT within 10 business days after receiving the notice for review of the decision to pay the amount out of the Fund.

Subsection (5) provides that the party to the dispute who paid the money into the Fund may give written consent to the payment of the amount out of the Fund to the other party to the dispute or a person authorised by the other party.

Subsection (6) provides that the Director of CAV must pay the amount out of the Fund on the receipt by the Director of the written consent under subsection (5), or at the end of the prescribed period, whichever occurs first.

Subsection (7) provides that prescribed period means the later of the period for making an application for review of the decision to pay the amount out of the Fund, or, if an application for review is made, the period until a determination is made affirming that decision.

Subdivision 2—Amendment or cancellation of dispute resolution order

New Subdivision 2 sets out procedures for the amendment or cancellation of a dispute resolution order.

New section 49H provides that the chief dispute resolution order may amend or cancel a dispute resolution order at any time of his or her own volition and may consider the matters in subsection (2).

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Subsection (2) provides that in making a decision under subsection (1) the chief dispute resolution officer may consider any of the following—

any change in the nature of the dispute or the circumstances of the parties since the dispute was referred under Division 2;

the conduct of the parties;

any other matters that the chief dispute resolution officer considers relevant.

New section 49I provides that the chief dispute resolution officer may cancel a dispute resolution order if a condition of that order is not complied with.

New section 49J provides for a party to a domestic building work dispute to ask the chief dispute resolution officer to amend or cancel a dispute resolution order within 10 days of being given the order.

Subsection (2) provides that such a request may only be made on the ground that there has been a substantial change in the nature of the dispute or the circumstances of the parties since the chief dispute resolution officer was given a copy of the assessor's report.

Subsection (3) provides that a request must be made within 10 business days after the dispute resolution order is served on the party.

Subsection (4) provides that the party making the request must give written notice of the request to each other party to the dispute within 2 business days after making the request.

New section 49K sets out the powers of the chief dispute resolution officer in considering whether to amend or cancel a dispute resolution order.

Subsection (1) provides that, for the purpose of deciding whether to amend or cancel a dispute resolution order, the chief dispute resolution officer may—

make any inquiries or obtain any information the chief dispute resolution officer considers necessary; and

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ask any party to the dispute to provide any information or documents that chief dispute resolution officer considers necessary.

Subsection (2) provides that the chief dispute resolution officer may fix a period for compliance with a request or requirement under subsection (1) and may extend that period at the request of any party.

Subsection (3) provides that any period fixed under section 49L for determining a request under section 49J ceases to run during the period for compliance fixed under the section.

New section 49L addresses decisions of the chief dispute resolution officer on receiving a request under section 49J.

Subsection (1) provides that the chief dispute resolution officer must consider a request under section 49Jand, within 5 business days after receiving the request, decide—

to amend or cancel the dispute resolution order; or

to refuse to amend or cancel the dispute resolution order.

Subsection (2) provides that the chief dispute resolution officer is taken to have refused the request if the chief dispute resolution officer does not make a decision within 5 business days after the request.

New section 49M specifies the matters the chief dispute resolution officer considers when deciding requests under section 49J.

Subsection (1) provides that, in determining a request under section 49J, the chief dispute resolution officer—

must consider—

the extent to which any defective or incomplete domestic building work specified in the dispute resolution order has been rectified and completed; and

any changes in the nature of the dispute or the circumstances of the parties since the assessor gave a copy of the assessor's report to the chief dispute resolution officer under Division 5; and

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may consider—

the conduct of the parties; and

any other matter the chief dispute resolution officer considers relevant.

New section 49N provides that, if the chief dispute resolution officer decides to amend or cancel a dispute resolution order under section 49L, the chief dispute resolution officer may also amend or cancel a dispute resolution order issued to any other party to the dispute after giving 5 business days' notice the parties.

New section 49O deals with the notice the chief dispute resolution officer must give of a decision under section 49L or 49N.

Subsection (1) requires that the chief dispute resolution officer must give written notice of a decision under section 49L or 49N to the parties to the domestic building work dispute within 2 business days after making the decision.

Subsection (2) provides that, if the chief dispute resolution officer amends a dispute resolution order under section 49L, 49N, or 49T, the chief dispute resolution officer must give a copy of the amended order to each party to the domestic building work dispute without delay.

Subdivision 3—Compliance with a dispute resolution order

New section 49P deals with the notice that a party to a domestic building work dispute must give if they comply with the dispute resolution order.

Subsection (1) provides that a builder who has rectified or completed domestic building work in accordance with a dispute resolution order must give written notice to the chief dispute resolution officer and the building owner.

Subsection (2) provides that the notice must be given within 2 business days after the domestic building work is carried out.

Subsection (3) provides that the chief dispute resolution officer may direct an assessor to examine the domestic building work for which notice has been given under the section to confirm whether it complies with the dispute resolution order.

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New section 49Q(1) provides that a person who has paid money in accordance with a dispute resolution order must give written notice to the chief dispute resolution officer and the builder or the building owner (as the case requires).

Subsection (2) provides that the notice must be given within 2 business days after the payment is made.

New section 49R deals with the notice a building owner may give of a failure to rectify or complete work.

Subsection (1) provides that a building owner may give written notice to the chief dispute resolution officer that the builder has failed to rectify defective domestic building work or complete domestic building work in accordance with a dispute resolution order.

Subsection (2) provides that a notice under subsection (1) must be given—

within 5 business days after the building owner is given notice under section 49P in relation to the domestic building work; or

if no notice is received under section 49P, within 5 business days after the end of the period specified in the dispute resolution order for the carrying out of the rectification or completion work.

New section 49S provides for the chief dispute resolution officer to direct an assessor to examine the work required to be carried out if the chief dispute resolution officer receives a notice under section 49R. The assessor must prepare a report stating whether or not the dispute resolution order has been complied with and must provide the report to the dispute resolution officer and to each party to the dispute.

New section 49T provides that, on receiving a report under section 49S, the chief dispute resolution officer may extend the period for compliance with the order if the chief dispute resolution officer is satisfied that the failure to comply with the dispute resolution order was due to factors outside the control of the party required to comply with the order.

New section 49U specifies the content and procedures regarding breach of dispute resolution order notices.

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Subsection (1) provides that, subject to section 49T, the chief dispute resolution officer must issue a breach of dispute resolution order notice if it receives an inspection report under section 49S that states that the builder has failed to comply with a dispute resolution order.

Subsection (2) provides that the chief dispute resolution officer must serve a copy of the notice on each party to the domestic building work dispute without delay after it is issued.

Subsection (3) provides that a breach of dispute resolution order notice must state that the party required to comply with the dispute resolution order may apply to VCAT for a review of the decision to issue the notice and the time within which the application may be made.

Subsection (4) provides that a breach of dispute resolution order notice takes effect in relation to a party immediately upon being served on that party.

Subsection (5) requires the chief dispute resolution officer to give written notice to the VBA of the issue of a breach of dispute resolution order notice at the end of the prescribed period, being the later of—

the period for making an application for review of the decision; or

if an application for review is made, the period until a determination is made affirming the decision.

Subsection (6) provides that the chief dispute resolution officer may recover the costs of an examination and report by an assessor under section 49S from the builder in any court of competent jurisdiction as a debt due to the State.

Subsection (7) provides that any amount recovered under subsection (6) must be paid into the Domestic Builders Fund.

Subsection (8) defines what constitutes the prescribed period under subsection (5).

New section 49V provides for the cancellation of breach of dispute resolution order notices.

Subsection (1) provides that the chief dispute resolution officer may cancel a breach of dispute resolution order notice if the parties to the domestic building work dispute to which the

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dispute resolution order applies have notified the chief dispute resolution officer of the settlement of the dispute.

Subsection (2) provides that the notice to the chief dispute resolution officer must be signed by each party to the dispute.

Subsection (3) provides that the chief dispute resolution officer must give each party to the domestic building work dispute written notice of the cancellation of the breach of dispute resolution order notice.

New section 49W provides that a building owner may, by written notice to the chief dispute resolution officer and the builder, end a domestic building contract for domestic building work that is the subject of a dispute resolution order if—

a copy of a breach of dispute resolution order notice has been served on the building owner and the builder in relation to a failure by the builder; and

the period within which the builder could apply to VCAT for a review of the decision to issue the notice has ended and an application for review has not been made, or VCAT has affirmed the decision; and

the building owner has complied with any dispute resolution order issued to the building owner in relation to the domestic building work dispute; and

the building owner has complied with any conditions required to be complied with by the building owner before the builder is required to comply with the dispute resolution order.

Subsection (2) provides that, if a building owner ends a domestic building contract under the section, the building owner is released from any further performance of the contract.

Subsection (3) provides that, if a contract is ended under the section, the builder is entitled to a reasonable price for the work carried out under the contract to the date the contract is ended.

Subsection (4) provides that a builder may not recover under subsection (3) more than the builder would have been entitled to recover under the contract.

New section 49X specifies the circumstances in which a builder may end a domestic building contract.

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Subsection (1) provides that a builder may, by written notice to the chief dispute resolution officer and the building owner, end a domestic building contract for domestic building work that is the subject of a dispute resolution order issued to the building owner if—

the period within which the building owner could apply to VCAT for a review of the decision to issue the dispute resolution order has ended without an application for review being made; and

the date by which the dispute resolution order was required to be complied with has passed and the building owner has failed to comply with the order; and

the builder has complied with any conditions required to be complied with by the builder before the building owner is required to comply with the order; and

the dispute resolution order included a finding that the building work was not defective or incomplete; and

the builder has complied with any dispute resolution order issued to the builder in relation to the domestic building work dispute.

Subsection (2) provides that, if a builder ends a domestic building contract under this section, the builder is released from any further performance of the contract.

Division 7—Powers of Director in relation to domestic building work proceedings

New section 50 sets out the powers of the Director of CAV to institute and defend proceedings on behalf of a building owner in certain circumstances.

New section 50A sets out matters relating to proceedings and costs for proceedings instituted or defended under section 50A.

New sections 50 and 50A essentially remake sections 43D and 43E of the DBCA as in force immediately before the commencement of this Part.

New section 50(1) empowers the Director of CAV to institute proceedings on behalf of, or defend proceedings brought against, a building owner involved in a domestic building work dispute if the Director is satisfied—

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that the building owner has a good cause of action or a good defence to an action relating to the dispute; and

that it is in the public interest to institute or defend proceedings on behalf of the building owner.

Subsection (2) provides that the Director must not institute or defend proceedings on behalf of a building owner unless the building owner has given written consent.

Subsection (3) provides that, after consent has been given under subsection (2), the Director may institute or continue with a proceeding or defence on behalf of a building owner even if the building owner revokes the consent.

New section 50A sets out matters relating to proceedings and costs for proceedings instituted or defended under section 50.

Subsection (1) provides that, if the Director of CAV institutes or defends proceedings on behalf of a building owner under section 50—

the Director may settle the proceedings either with or without obtaining judgment in the proceedings; and

if a judgment is obtained in the proceedings in favour of the building owner, the Director may take any steps that are necessary to enforce the judgment; and

subject to subsections (2) and (3), an amount (other than an amount in respect of costs) recovered in the proceedings is payable to the builder owner; and

an amount in respect of costs recovered in the proceedings is payable to the Director; and

subject to subsection (2), the building owner is liable to pay an amount (not being an amount of costs) awarded against the building owner in the proceedings; and

the Director is liable to pay the costs of or incidental to the proceedings that are payable by the building owner.

Subsection (2) provides that, if the Director institutes, defends or continues proceedings on behalf of the building owner after the building owner withdraws the consent to the proceedings—

the Director must compensate the building owner for—

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any loss suffered as a result of the loss of any settlement offer made to the building owner; and

out-of-pocket expenses incurred by the building owner during the proceedings after the withdrawal of consent; and

the Director is liable to pay any amount awarded against the building owner in the proceedings.

Subsection (3) provides that, if the Director institutes, defends or continues proceedings on behalf of a building owner after the building owner withdraws the consent to the proceedings or defence, any amount recovered in the proceedings (including any amount for costs) that exceeds the amount payable to the building owner under subsection (2) may be applied to the payment of the costs of and incidental to the proceedings for which the Director is liable or that are incurred by the Director in relation to the proceedings.

Subsection (4) provides that, if, in proceedings instituted or defended on behalf of a building owner under section 50—

a party to the proceedings files a counterclaim; or

the building owner is entitled to file a counterclaim—

and the counterclaim is not or would not be related to the proceedings and to the interests of the building owner in the dispute, the Director may apply to the court hearing the proceedings or VCAT for an order that the counterclaim not be heard in the course of those proceedings.

Subsection (5) provides that, if the court or VCAT makes an order under subsection (4), the court or VCAT may make any ancillary or consequential orders that it considers fair.

Division 8—Domestic Building Dispute Resolution Victoria Trust Fund

New section 51 requires that the Director of CAV must establish and maintain a trust fund to be called the Domestic Building Dispute Resolution Victoria Trust Fund.

The Director must establish an account with an authorised deposit-taking institution for the investment of the Fund, and the

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proceeds of the investment of the Fund are to be paid into the Domestic Builders Fund.

Subsections (3) and (4) provide that there may be paid into and out of the Fund all amounts required or permitted to be paid into or out of the Fund respectively under the DBCA.

New section 51A provides for parties to a domestic building work dispute to agree to pay amounts into and out of the Domestic Building Dispute Resolution Victoria Trust Fund.

Subsection (1) provides that the parties to a domestic building work dispute may agree that a party is to pay an amount into the Fund.

Subsection (2) requires that the agreement must be in writing and set out the conditions for payment of the amount into and out of the Fund.

Subsection (3) requires that the agreement must not—

be inconsistent with any dispute resolution order issued in relation to the work that is the subject of the dispute; or

relate to money paid into the Fund in compliance with a dispute resolution order.

Subsection (4) provides that, if a party to a domestic building work dispute has paid money into the Fund under the section, the parties to the dispute may by agreement give written notice to the Director of CAV to pay some or all of that money out of the Fund.

Subsection (5) permits the Director of CAV to pay money out of the Fund in accordance with a notice given under subsection (4).

Division 9—Domestic Building Dispute Resolution Victoria

New Division 9 sets out matters relating to Domestic Building Dispute Resolution Victoria.

New section 52 provides that Domestic Building Dispute Resolution Victoria is established.

New section 52A provides that Domestic Building Dispute Resolution Victoria consists of the chief dispute resolution officer appointed under section 52C, conciliation officers

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appointed under section 52E, and assessors appointed under section 48.

New section 52B provides that the functions of Domestic Building Dispute Resolution Victoria are to administer the scheme under Part 4 for the resolution of domestic building disputes, and any other functions conferred on it by or under the DBCA.

New section 52C requires the Director of CAV to appoint a person employed under Part 3 of the Public Administration Act 2004 as the chief dispute resolution officer.

New section 52D provides that the functions of the chief dispute resolution officer are—

to perform the functions of Domestic Building Dispute Resolution Victoria; and

to assess referrals of domestic building work disputes for conciliation; and

to assess and inquire into domestic building work disputes; and

to conduct the conciliation of domestic building work disputes; and

to issue dispute resolution orders; and

any other function conferred on the chief dispute resolution officer by or under the DBCA.

New section 52E provides that the Director of CAV may appoint as a conciliation officer any person employed under Part 3 of the Public Administration Act 2004, or any other person.

New section 52F provides that the chief dispute resolution officer may delegate any of their powers and functions under the DBCA to another conciliation officer (this does not include the power of delegation—see section 42AA(1) of the Interpretation of Legislation Act 1984).

New section 52G provides that a conciliation officer is not subject to the direction of the Director of CAV in relation to any decision or discretion that may be made or exercised by the

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conciliation officer in relation to a particular domestic building work dispute.

New section 52H provides an immunity for conciliation officers.

Subsection (1) provides that a conciliation officer is not personally liable for anything done or omitted to be done in good faith—

in the exercise of a power or the discharge of a duty under the DBCA; or

in the reasonable belief that the act or omission was in the exercise of a power or the discharge of a duty under the DBCA.

Subsection (2) provides that any liability resulting from an act or omission that, but for subsection (1), would attach to the conciliation officer, attaches instead to the State.

New section 52I(1) requires that, subject to this Part, a conciliation officer or an assessor must not disclose to any person information obtained in the course of carrying out any function under Part 4. A penalty of up to 60 penalty units applies.

Subsection (2) Provides that a conciliation officer may disclose information obtained in the course of carrying out any function under Part 4 for the purpose of carrying out the function or—

to the Director of CAV; or

to the VBA; or

to the Victorian Managed Insurance Authority; or

with the written consent of each person to whom the information relates.

Clause 7 inserts new section 56 into the DBCA, which provides that a certificate of conciliation is required to bring proceedings in VCAT to resolve a domestic building work dispute.

Subsection (1) provides that a party to a domestic building work dispute must not make an application to VCAT in relation to the dispute unless the chief dispute resolution officer has issued a certificate of conciliation to the party, certifying that the dispute—

was not suitable for conciliation; or

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was not resolved by conciliation.

Subsection (2) provides that an application to VCAT to commence proceedings in relation to a domestic building work dispute must be accompanied by a copy of the certificate of conciliation.

Subsection (3) provides that the section does not apply to proceedings for an order in the nature of an injunction.

Clause 8 inserts new section 57A into the DBCA, which provides that certain actions are not to proceed in a court without a certificate of conciliation or leave of the court.

Subsection (1) provides that a party to a domestic building work dispute may not commence an action in a court arising wholly or predominantly from the dispute unless—

the chief dispute resolution officer has issued a certificate of conciliation to the party certifying that the dispute—

was not suitable for conciliation; or

was not resolved by conciliation; or

the party has been granted leave by the court to bring the proceedings.

Subsection (2) provides that the section does not apply to proceedings for an order in the nature of an injunction.

Clause 9 inserts new Subdivision 3 after Subdivision 2 of Division 2 of Part 5 of the DBCA. New Subdivision 3 sets out matters relating to dispute resolution orders.

New section 63 addresses applications for a review of a decision to issue or amend a dispute resolution order. It is intended that a review under this section will be heard by VCAT under its review jurisdiction.

Subsection (1) provides that a person who is required to comply with a dispute resolution order may apply to VCAT for review of the decision to issue or amend the dispute resolution order.

Subsection (2) provides that an application under subsection (1) must be made within 20 business days after the later of the day on which the applicant was given a copy of the dispute resolution order or the amendment to the dispute resolution order (as the

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case requires), or, if under the VCAT Act the applicant requests a statement of reasons, the day on which the applicant receives that statement of reasons or the applicant is informed under section 46(5) of that Act that a statement of reasons will not be given.

Subsection (3) provides that an application under subsection (1) must be made on the ground that—

the description in the dispute resolution order of the domestic building work that is defective or incomplete is incorrect; or

the period specified in the dispute resolution order for carrying out the rectification or completion work is not reasonable; or

a requirement in the dispute resolution order to take a specific action or to refrain from taking a specific action is not necessary or reasonable.

Subsection (4) provides that, in determining an application for review of a dispute resolution order, VCAT may make any order it considers fair in relation to the domestic building contract to which the dispute relates.

Subsection (5) provides that, without limiting subsection (4), VCAT may do one or more of the following—

vary any term of the domestic building contract (including the completion date, the contract price, a provisional sum or the amount to be paid for a prime cost item);

declare that a term of the domestic building contract is, or is not, void under section 132;

declare void any unjust term of the domestic building contract, or otherwise vary the domestic building contract to avoid injustice.

New section 64 provides that, if, with the leave of VCAT, an application for review under section 63 is withdrawn, the dispute resolution order takes effect and any period for which the order is stayed is not to be counted in calculating the period for compliance with the order.

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New section 65 deals with applications for review of a decision to pay money out of the Domestic Building Dispute Resolution Victoria Trust Fund. It is intended that a review under this section will be heard by VCAT under its review jurisdiction.

Subsection (1) enables a party to a domestic building work dispute to apply to VCAT for a review of a decision by the Director of CAV under section 49G to pay money out of the Fund.

Subsection (2) specifies that an application under subsection (1) must be made within 10 business days after the party received written notice of the Director's decision under section 49G.

New section 66 deals with applications for review of a decision to issue a breach of dispute resolution order notice. It is intended that a review under this section will be heard by VCAT under its review jurisdiction.

Subsection (1) provides that a builder may apply to VCAT for review of a decision of the chief dispute resolution officer to issue a breach of dispute resolution order notice under Part 4 of the DBCA.

Subsection (2) specifies that an application under subsection (1) must be made within 20 business days after the later of the day on which the applicant was served with a copy of the notice, or, if under the VCAT Act the applicant requests a statement of reasons, the day on which the applicant receives that statement of reasons or the applicant is informed under section 46(5) of that Act that a statement of reasons will not be given.

Subsection (3) provides that an application under subsection (1) must be made on the ground that the assessment made in the assessor's report on which the notice was based, that the dispute resolution order has not been complied with, was not correct, or is no longer correct because the dispute resolution order has since been complied with.

Subsection (4) allows the building owner to make submissions to the proceedings on the application for review in relation to whether there has been a failure to comply with a dispute resolution order, and the nature of the failure to comply with the dispute resolution order.

Subsection (5) provides that, if an application for review is made under the section, any disciplinary action against the builder

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under the Building Act as a result of the failure to comply with the dispute resolution order is stayed pending the outcome of the review.

New section 67 deals with applications by a building owner for an order following the ending of a domestic building contract. The section applies if a building owner ends a domestic building contract in accordance with Division 6 of Part 4 of the DBCA. It is intended that a proceeding commenced under this section will be heard by VCAT under its original jurisdiction.

Subsection (2) enables the building owner to apply to VCAT for an order against the builder.

Subsection (3) provides that VCAT must consider—

the domestic building contact, including any plans and specifications set out in it; and

any assessor's report provided to the chief dispute resolution officer under Division 6 of Part 4 in relation to the work to which the contract applies; and

VCAT may make any order it considers fair in the circumstances.

Subsection (4) provides that, without limiting VCAT's power under subsection (3) to make any order it considers fair in the circumstances, VCAT may order the builder to pay a sum of money to the building owner in one or more of the following circumstances—

if the money is found to be owing to the building owner by the builder;

by way of damages;

by way of restitution;

to refund money paid under the domestic building contract, including any money paid by the building owner in excess of the requirements of the contract.

Subsection (5) requires that an order under this section must provide for a builder to receive a reasonable price for work carried out under the domestic building contract, not being more than the builder would be entitled to recover under the contract.

New section 67A deals with applications by a builder for an order following the ending of a domestic building contract.

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The section applies if a builder ends a domestic building contract in accordance with Division 6 of Part 4 of the DBCA. It is intended that a proceeding commenced under this section will be heard by VCAT under its original jurisdiction.

Subsection (2) enables the builder to apply to VCAT for an order against the building owner.

Subsection (3) provides that VCAT may make any order it considers fair in the circumstances.

Subsection (4) provides that, without limiting subsection (3), VCAT may order the building owner to pay a sum of money to the builder—

for work performed under the contract; and

by way of damages for loss of work as a result of ending the contract.

Clause 10 amends the DBCA to substitute all references in the DBCA to "the Tribunal" with "VCAT". See section 38 of the Interpretation of Legislation Act 1984.

Clause 11 inserts new section 136, which provides that Schedule 1 (which sets out transitional provisions) has effect.

Clause 12 inserts new Schedule 1, which sets out transitional provisions.

New clause 1 provides that commencement day means the day on which Part 2 of the Bill comes into operation.

New clause 2 sets out transitional arrangements for complaints made to the Director of CAV under Part 3A before the commencement day.

Subclause (1) provides that the DBCA as in force immediately before the commencement day continues to apply in relation to any complaint made to the Director of CAV under Part 3A before the commencement day. Continued application of Part 3A to such complaints will mean that the parties would not be subject to the requirement in new section 56, to be inserted into the DBCA by clause 8, that a certificate of conciliation issue before they may commence proceedings in VCAT.

Subclause (2) provides that, for the purposes of subclause (1), the VCAT Act applies as if the amendments made by Division 2 of Part 2 of the Bill had not been made.

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New clause 3 sets out transitional arrangements for examinations by assessors that commenced before the commencement day or as a result of a request under section 43F as continued by clause 2. The clause provides that Part 4 of the DBCA, as in force before its substitution by Part 2 of this Bill, continues to apply in relation to any examination by an inspector appointed under that Part 4—

that commenced before the commencement day; or

that commences on or after the commencement day as a result of a request under section 43F as continued by clause 2.

New clause 4 addresses regulations dealing with transitional matters.

Subclause (1) provides that the Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of Part 2 of this Bill, including any repeals or amendments made as a result of the enactment of that Part.

Subclause (2) provides that regulations made under the clause may have a retrospective effect to a day on or from a date not earlier than the date on which this Bill receives the Royal Assent.

Subclause (3) provides that regulations made under the clause have effect despite anything to the contrary in any other Act (other than the DBCA or the Charter of Human Rights and Responsibilities Act 2006) or in any subordinate instrument.

Subclause (4) provides that sections 6 and 7 of the Subordinate Legislation Act 1994 do not apply to regulations made under the clause that expire on or before 1 July 2017.

Subclause (5) provides for the repeal of the clause on 1 July 2019.

Division 2—Amendments to Victorian Civil and Administrative Tribunal Act 1998

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Clause 13 inserts new subclause (2) into clause 11K of Schedule 1 which provides that words and expressions in Part 6 of Schedule 1 of the VCAT Act have the same meanings as they have in the DBCA.

Clause 14 amends clause 12A(1) of Schedule 1 to the VCAT Act. The first amendment is statute law revision to replace a reference to the "Commission" with a reference to the "Authority", reflecting the replacement of the Building Commission with the VBA. The second amendment inserts subclause (3) after clause 12A(2) of Schedule 1 to the VCAT Act, which provides that VCAT's power under subclause (1) to request information about a domestic building dispute does not apply to information that is inadmissible because of section 46C of the DBCA.

Clause 15 inserts new clauses 12B to 12D into Schedule 1 to the VCAT Act.

New clause 12B sets out matters relating to costs in relation to domestic building work disputes generally. The clause applies despite section 109 of the VCAT Act (which makes general provisions in relation to costs).

Subsection (2) requires VCAT to make an award of costs against an unsuccessful party to the dispute if the matter was referred for conciliation and the party refused to participate in the conciliation conference or refused to participate in good faith. VCAT is not required to make such an award if it is satisfied that it would be unfair to do so, having regard to—

whether another party has conducted the proceeding in a way that unnecessarily disadvantaged the first-mentioned party to the proceeding by conduct such as—

failing to comply with an order or direction of VCAT without reasonable excuse;

failing to comply with the DBCA, the regulations, the rules or the enabling enactment;

asking for an adjournment as a result of failing to comply with an order or direction of VCAT

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without reasonable excuse, or failing to comply with the DBCA, the regulations, the rules or the enabling enactment;

causing an adjournment;

attempting to deceive another party or VCAT;

vexatiously conducting the proceeding; and

whether another party has been responsible for prolonging unreasonably the time taken to complete the proceeding; and

the relevant certificate of conciliation; and

any other matters VCAT considers relevant.

New clause 12C applies if a party to a domestic building work dispute applies to VCAT for the review of a decision to issue a dispute resolution order under Part 4 of the DBCA, and the party withdraws the application.

Subclause (2) provides that, despite section 109 of the VCAT Act, VCAT must award costs against the party that withdrew the application unless VCAT is satisfied that it would be unfair to do so.

New clause 12D applies despite section 109 of the VCAT Act, and applies to an application to VCAT for review of a decision to issue a dispute resolution order.

Subclause (3) provides that, if the applicant is the builder, VCAT may award costs against the builder if the determination of VCAT is—

to affirm the decision to issue the dispute resolution order; or

to vary the dispute resolution order to increase the obligations on the builder or decrease the obligations on the building owner.

Subclause (4) provides that, if the applicant is the building owner, VCAT may award costs against the building owner if the determination of VCAT is—

to affirm the decision to issue the dispute resolution order, including a dispute resolution order that includes a finding referred to in section 49D(1) of the DBCA; or

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to vary the dispute resolution order to increase the obligations on the building owner or to decrease the obligations on the builder.

Subsection (5) provides that, in determining whether to award costs under the clause, VCAT must consider—

whether the application was vexatious, frivolous or lacking in substance; and

any certificate of conciliation relating to the domestic building work dispute to which the dispute resolution order relates; and

any other matter VCAT considers relevant.

Part 3—Regulation of building work and building practitioners

Division 1—Interpretation

Clause 16 substitutes, amends and repeals existing definitions and inserts new definitions into section 3(1) of the Building Act. The substituted definitions reflect the abolition of the BPB and establishment of appeal and review functions in the VBA and VCAT. The new definitions also relate to the introduction of codes of conduct for building practitioners.

Division 2—Abolition of Building Practitioners Board

Clause 17 repeals Division 3 of Part 11 of the Building Act. This Division relates to the BPB, which is to be abolished and its registration and disciplinary functions transferred to the VBA.

Clause 18 amends and repeals a number of sections of the Building Act by substituting references to the BPB (which is to be abolished) with references to the VBA (which is to take over the BPB's functions relating to the registration and supervision of building practitioners and the issue of certificates of consent to owner-builders). It also inserts a provision that has the effect of subjecting former members of the BPB to the confidentiality requirements contained in section 259A of the Building Act.

Division 3—Registration of building practitioners

Clause 19 repeals section 169(2A) of the Building Act. This relates to applications for registration for certain classes of building

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surveyor and is not necessary as section 169(2)(b) provides for equivalent requirements regarding stating the class of registration sought on the application.

Clause 20 amends section 170 of the Building Act. Subclause (1) amends section 170(1)(b)(ii) to ensure that equivalent qualifications to prescribed qualifications cannot be accepted, if this is otherwise provided in the regulations. Subclause (2) substitutes section 170(1)(c) of the Building Act to replace the existing "good character" test for registration with a "fit and proper person" test to align registration processes with disciplinary outcomes.

Clause 21 inserts new section 170A into the Building Act. The new section requires the VBA to impose any prescribed conditions on registration, and enables the VBA to impose any other conditions it thinks appropriate.

Clause 22 substitutes section 171 of the Building Act to limit registrations under the Building Act to 5 years. Currently, registrations last until cancelled. The provision does not take away from any provision about suspension or cancellation of registration.

Clause 23 inserts new sections 172AA, 172AAB and 172AAC into the Building Act.

New section 172AA enables the VBA to renew the registration of a building practitioner. The same processes apply to renewals as they do to new registration, except that a building practitioner who has had prescribed qualifications (or their equivalent) accepted under section 170 of the Building Act is taken to have the appropriate prescribed qualification. The VBA may consider whether the applicant has complied with prescribed continuing professional development requirements, and any other prescribed renewal criteria or conditions. The regulations are to be able to permit a renewal fee to be paid by instalments.

New section 172AAB specifies the procedure for the suspension and cancellation of a registration where the regulations permit the payment of renewal fees by instalment, but the practitioner fails to pay an instalment.

New section 172AAC permits a building practitioner to surrender a registration with the consent of the VBA.

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Clause 24 amends section 176 of the Building Act.

Subclause (1) substitute section 176(1)(b) of the Building Act to remove references to building surveyor unlimited and building surveyor limited as new and amended classes of building surveyor are to be prescribed by the regulations and the prescribed titles for these will be regulated under section 176(1)(g).

Subclause (2) repeals section 176(1A)(a). This reflects that subclause (2) will insert a new offence prohibiting carrying out work as a building inspector unless registered.

Subclause (3) substitutes section 176(2) and (2AA) with new sections 176(2) and (2AA). New section 176(2) prohibits a person carrying out work as a building surveyor unless the person is registered under Part 11 and the person's registration (including any conditions) authorises the person to carry out the work. New section 176(2AA) has a similar effect with respect to building inspectors. The regulations will specify what work a category or class of building surveyor or building inspector will be authorised to carry out (see clause 28).

Subclause (4) substitutes section 176(2A). New section 176(2A) prohibits a builder carrying out domestic building work under a major domestic building contract unless the builder is registered under Part 11 and the builder's registration (including any conditions) authorises the builder to carry out the work. The regulations will specify what work a category or class of builder will be authorised to carry out (see clause 26).

Subclause (5) excludes domestic building work from the scope of the exception for work usually done in a class of registration contained in section 176(7) of the Building Act. This is intended to reflect that domestic builders will be restricted to carrying out work that their registration authorises them to carry out.

Clause 25 substitutes Divisions 2 and 2A of Part 11 of the Building Act (relating to BPB inquiries and reviews by VCAT of BPB inquiries) with new Divisions 2, 3 and 4.

Division 2—Codes of conduct for building practitioners

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New section 177 enables the VBA to approve a code of conduct for building practitioners. A code may apply to different categories or classes of building practitioners.

New section 177A provides that a code of conduct may be prepared by the VBA, or alternatively approved by the VBA after being prepared and submitted by an organisation representing building practitioners. The VBA must consult with any prescribed organisations representing building practitioners, and may also consult any other organisations it considers relevant, on the development of a code, and any changes it makes to a code it has developed. It must also consult with organisations who submitted a code of practice, and may also consult any other organisations it considers relevant, before making any changes to that code.

New section 177B requires codes of conduct to be published in the Government Gazette.

New section 177C provides that a code of conduct comes into effect on the later of publication in the Government Gazette or a date specified in the code of conduct.

New section 177D requires a building practitioner to comply with any applicable code of conduct approved under the Subdivision. Failure to comply will constitute grounds for disciplinary action.

Division 3—Disciplinary proceedings and action

Subdivision 1—Preliminary

New section 178 defines what is meant by disciplinary action. The sanctions available range from reprimanding a building practitioner through to cancellation of a building practitioner's registration, and disqualification for a period of up to 3 years.

New section 178A ensures that disciplinary proceedings can be taken against a building practitioner whose registration is already suspended.

Subsection (1) ensures that the provisions relating to disciplinary proceedings and action can be applied to a building practitioner whose registration is suspended (for example, as a result of an immediate suspension).

Subsection (2) restricts the VBA from giving a show cause notice to a building practitioner more than 3 years after a period of suspension ends, if the suspension relates to that matter.

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Subdivision 2—Grounds for disciplinary action

New section 179 outlines the various grounds on which the VBA may take disciplinary action against a building practitioner.

New section 179A deems contraventions of the Building Act, the regulations, the DBCA, and the Domestic Building Contracts Regulations by a body corporate or partnership to be contraventions by any director or partner who is a registered building practitioner, for the purposes of disciplinary action under section 179. Disciplinary action is civil in nature. This is similar to current section 179B of the Building Act.

Subdivision 3—Immediate suspension of registration

New section 180 sets out the grounds for immediate suspension of a building practitioner's registration. Among other things, it lists a range of offences for which a conviction would render someone unlikely to be a fit and proper person.

New section 180A provides for the immediate suspension of registration.

Subsection (1) provides that the VBA may suspend a building practitioner's registration if the VBA reasonably believes that a ground for immediate suspension exists.

Subsection (2) sets out that a notice of immediate suspension must be given if the VBA considers the practitioner has ceased to be covered by the required insurance.

Subsection (3) enables a suspension under subsection (1) to be a suspension of the whole registration, or a partial suspension that only applies in relation to specified matters.

Subsection (4) sets out the contents of the notice.

Subsection (5) requires the VBA to give the building practitioner reasons within 5 business days of the decision to immediately suspend registration.

Subsection (6) requires the VBA to give the building practitioner a show cause notice under section 182 without delay after giving a notice of immediate suspension.

New section 180B specifies the period of suspension.

Subsection (1) sets out that a suspension given under section 180A takes effect on the day notice is given to the

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building practitioner and continues until the earlier of the day the suspension is revoked by the VBA or set aside by VCAT.

Subsection (2) requires the VBA to revoke an immediate suspension if it does not consider that a ground for immediate suspension exists (see also new section 182C(b) where no grounds to take disciplinary action exist).

Subsection (3) requires the VBA to revoke a suspension imposed where the builder was not covered by the required insurance if it is satisfied the building practitioner is covered by the required insurance, and the insurance cover is provided until the next anniversary of registration.

Subdivision 4—Ability to practise

New section 181 empowers the VBA to cancel or suspend a building practitioner's registration if the VBA is satisfied the building practitioner is incapable of practising because of physical or mental infirmity. This is similar to current section 180(1) of the Building Act.

Subsection (2) enables the VBA to cancel registration or suspend registration for up to 3 years.

Subsection (3) enables the VBA to renew suspensions.

Subsection (4) specifies that the show cause process is to be followed, and also ensures rights of review of decisions are available.

New section 181A sets out when a suspension under section 181 may be revoked.

Subsection (1) enables a building practitioner whose registration is suspended to apply to the VBA for a revocation of the suspension.

Subsection (2) empowers the VBA to determine the form of applications.

Subsection (3) requires the VBA to consider any application, unless it considers the application to be frivolous, vexatious or lacking in substance.

Subsection (4) enables the VBA to revoke a suspension if satisfied the building practitioner is capable of practising.

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Subsection (5) requires the VBA to give written notice to the building practitioner of a decision under subsection (4).

Subdivision 5—Show cause process

New section 182(1) requires the VBA to give a show cause notice where it reasonably believes that a ground for taking disciplinary action exists against a building practitioner and it proposes to take that action.

Subsection (2) specifies the contents of a show cause notice.

Subsection (3) requires a show cause period to be at least 14 days after a notice is given.

Subsection (4) enables the VBA to extend the period in which a builder may show cause.

New section 182A enables a registered building practitioner to make oral and written representations to the VBA regarding a show cause notice provided the representations are made during the show cause period. The VBA must keep a record of oral representations made to it.

New section 182B requires the VBA to make a decision about whether a ground exists to take disciplinary action within 28 days of the end of the show cause period.

New section 182C requires the VBA to take no further action about the show cause notice if it no longer believes a ground exists to take disciplinary action against a registered building practitioner. The VBA must give written notice to the registered building practitioner as soon as practicable after deciding to take no further action.

New section 182D enables the VBA to accept an enforceable undertaking from a building practitioner. If the VBA accepts an undertaking, it may defer taking disciplinary action for a specified period or, alternatively, take less serious action or no further action.

New section 182E(1) empowers the VBA to take disciplinary action if it still believes a ground to take disciplinary action exists. The VBA may take the proposed action or, where

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representations have been made, take action it considers to be less serious.

Subsection (2) requires the VBA to give a written notice to the registered building practitioner of its decision.

Subsection (3) specifies the contents of the notice.

Subsection (4) states when a decision to take disciplinary action takes effect.

Subdivision 6—General provisions relating to disciplinary action

New section 183 deals with who the VBA must give notice of a decision to. Subsection (1) requires the VBA to give notice of a decision to take disciplinary action to the complainant to whom the decision relates. Subsection (2) provides that if the building practitioner was a member of a professional association or is employed, the VBA must give notice to that professional association or employer. This section is similar to current section 182(1) and (3) of the Building Act.

New section 183A requires a person whose registration as a building practitioner is cancelled or suspended to give notice to any person who has a contract with the person relating to the person's work as a building practitioner. This is similar to current section 182(4) of the Building Act. The maximum penalty has been increased from 10 penalty units to 50 penalty units, reflecting the importance of this notice as a consumer protection.

New section 183B provides that complaints made in good faith to the VBA are privileged and that a person is not liable for loss, damage or injury caused by the making of a complaint or the giving of documents, information or evidence.

New section 183C provides that where a person's registration as a building practitioner is suspended, the person is taken not to be registered either wholly or, if it is a partial suspension, in relation to the matter specified in the suspension. Subsection (2) enables suspended practitioners to apply for renewal of their registration, but any suspension applies to the renewed registration until either the practitioner's registration is cancelled or the suspension ends or is revoked.

New section 183D enables the VBA to revoke a suspension. Subsection (1) provides that the VBA may revoke a suspension

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imposed for disciplinary reasons if satisfied there is good reason to do so. Subsection (2) provides that the VBA must give written notification to the registered building practitioner of a decision to revoke a suspension.

New section 183E gives the VBA the power to recover any money owing to it by way of a penalty in a court of competent jurisdiction as a debt due to the VBA.

Division 4—Review of decisions relating to building practitioners

Subdivision 1—Preliminary

New section 184 defines terms used in Division 2, which relates to reviews of decisions relating to building practitioners. The definition reviewable decision specifies which decisions of the VBA are reviewable.

Subdivision 2—Internal review

New section 185 enables a person who is directly affected by a reviewable decision made by a delegate of the VBA (other than a Commissioner or the chief executive officer) to seek an internal review of that decision. An application for internal review must be made within 28 days. A decision is stayed if an application is made for internal review, except where the decision is to immediately suspend registration.

New section 185A specifies who cannot conduct an internal review. The person conducting the internal review must be decided by a person appointed by the VBA. The VBA, the original decision-maker, a person who was involved in matters that gave rise to the original decision and persons who are less senior to the decision-maker or a person involved in matters are all precluded from deciding the review.

New section 185B specifies what an internal reviewer is to have regard to when conducting the review. The reviewer must give an affected person a reasonable opportunity to make written and oral representations to the reviewer.

New section 185C specifies which decisions a reviewer can make with respect to reviewable decisions. This decision is a review

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decision. Subsections (2) to (4) detail the effect of the review decision for the purpose of applications to VCAT for review.

New section 185D requires the VBA to give notice to the affected person of the review decision. Subsection (2) details the contents of the notice. Subsection (3) specifies that if a notice is not given within the review period, the reviewer is taken to have affirmed the original decision. Subsection (4) defines review period for the purposes of the section being 28 days or such longer period as may be prescribed.

Subdivision 3—Review by VCAT

New section 186 provides that an affected person may apply to VCAT for a review of a reviewable decision if they are dissatisfied with the review decision, and, if the person is not eligible for internal review, the person may apply for review of a reviewable decision or if the decision under review is to immediately suspend, suspend or cancel a registration.

Subsection (4) provides for time limits for seeking review. These time limits will be 14 days after the end of the review period (if an application for internal review has been made) and 28 days in any other case.

New section 187 specifies the powers VCAT has with respect to reviewable decisions and review decisions. An application for review stays the decision pending the outcome of the review, except for decisions to immediately suspend registration.

Clause 26 amends section 261 of the Building Act to insert new regulation-making powers specifying the work that a category or class of registration as a building surveyor or building inspector authorises a person to carry out, or specifying the domestic building work that a category or class of registration as a builder authorises a person to carry out.

Division 4—Regulation of owner-builders

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Clause 27 amends section 25B of the Building Act. Subclauses (1) and (2) replace a reference to $12 000 with a reference to the prescribed amount. The prescribed amount is $16 000 or an amount prescribed by the regulations. This aligns the threshold for which a certificate of consent is required to carry out domestic building work with the threshold for which domestic building insurance is required.

Clause 28 further amends section 25B of the Building Act.

Subclause (1) substitutes section 25B(1)(b) so that only a builder whose registration authorises him or her to carry out the relevant domestic building work can do so without the need to obtain a certificate of consent.

Subclause (2) inserts a new offence requiring an owner of land or a building, who is an owner-builder operating under a certificate of consent, not to enter into major domestic building contracts with a person unless the person is registered under Part 11 and whose registration authorises the person to carry out the work. The provision does not apply if the owner of the land or building took reasonable steps to comply with the provision. A maximum penalty of up to 60 penalty units applies for the first offence and a maximum penalty of 120 penalty units applies for subsequent offences.

Clause 29 amends section 25C of the Building Act to require that an application for a certificate of consent is accompanied by the prescribed information and the prescribed application fee.

Clause 30 amends section 25E of the Building Act with respect to decisions on applications for certificates of consent.

Subclause (1) requires the VBA to be satisfied that an applicant for a certificate of consent has the prescribed knowledge of the duties and responsibilities of an owner-builder.

Subclause (2) substitutes new paragraphs (e), (f) and (g) of section 25E(1) to restrict the issue of certificates of consent to owner-builders to one in every 5 years, and to clarify that ancillary buildings are Class 10 buildings.

Subclause (3) substitutes section 25E(2) to restrict the VBA from issuing a certificate of consent to a person who entered into

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a contract to sell a building they constructed without obtaining the required insurance, contravening section 137B(2)(b) of the Building Act. Current section 25E(2) is a spent transitional provision.

Subclause (4) substitutes section 25E(6) to inserts definitions of class 10 building and related body.

Clause 31 substitutes section 25G(b) of the Building Act to provide that a certificate of consent expires if its holder has not obtained a building permit within 12 months (or a longer prescribed period) or the building permit lapses.

Clause 32 inserts section 25H(3) of the Building Act, authorising the VBA to publish information in the certificate of consent register on its website.

Clause 33 repeals section 25I of the Building Act. This relates to an information statement for owner-builders published by the VBA. Instead of stating that they have read this statement, owner-builders will have to demonstrate prescribed knowledge of the duties and responsibilities of an owner-builder (see clause 30(1).

Clause 34 inserts new section 227AA of the Building Act, defining an owner-builder for the purpose of performance audits under Division 1A of Part 13 of the Building Act.

Clause 35 amends section 227B of the Building Act so as to permit performance audits of owner-builder work.

Clause 36 amends section 227C of the Building Act, so as to require owner-builders to give certain information and documents to performance auditors.

Division 5—Regulation of building surveyors

Clause 37 inserts a new Division heading before section 76 in Part 6 of the Building Act—"Division 1—Appointment of private building surveyors".

Clause 38 amends section 78 of the Building Act, inserting new subsections restricting domestic builders from appointing a private building

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surveyor on behalf of an owner, and restricting a building surveyor from accepting such an appointment. Actions taken by a private building surveyor who has been invalidly appointed will not be affected.

Clause 39 amends section 79 of the Building Act to address circumstances in which a building surveyor may have a conflict of interest.

Subclause (1)(a) and (4)(a) remove references to accepting an appointment, to ensure that conflicts of interest that can arise after acceptance of an appointment can be prosecuted.

Subclause (1)(b) and (4)(b) insert references to section 77 to ensure that conflicts of interest when carrying out other functions can be prosecuted.

Subclause (1)(c) amends section 79(1) to ensure that conflicts of interest arising in closely related persons are covered.

Subclause (2) inserts a general prohibition on building surveyors acting while under a conflict of interest. It is not an offence. Non-compliance will instead be grounds for discipline.

Subclause (3) enables the VBA to exempt a building surveyor from the general prohibition inserted by subclause (2).

Subclause (5) defines who is a related person in relation to a private building surveyor.

Clause 40 inserts a new Division heading after section 80 in Part 6 of the Building Act—"Division 2—Termination of appointment with consent of Authority".

Clause 41 inserts new Division 3 into Part 6, enabling the VBA to appoint a manager of the business of a private building surveyor in certain circumstances.

Subdivision 1—Preliminary

New section 83A defines what constitutes expenses in connection with the appointment of a manager.

Subdivision 2—Appointment of manager

New section 83B sets out the circumstances in which a manager may be appointed to a private building surveyor's business. These circumstances include where a private building surveyor requests an appointment, has had their registration suspended or cancelled, dies, is in prison, become a represented person,

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becomes insolvent under administration, or otherwise ceases to carry out the functions of a private building surveyor. Subsection (2) limits the manager's functions to the private building surveyor's functions under the Building Act. Subsection (3) provides that a manager is eligible for reappointment.

New section 83C requires the VBA to appoint a manager who is either registered as a building surveyor who can carry out all work of a building surveyor or a member of staff of the VBA who has the qualifications and experience required for registration as a building surveyor who can carry out all work of a building surveyor.

New section 83D sets out what an instrument appointing a manager must include. This includes details of the manager and the conditions under which the manager is appointed. The instrument may also specify reporting requirements.

New section 83E provides for conditions to be imposed on the appointment of a manager, both by the VBA and by the regulations. Written notice of changed conditions must be given to the manager.

New section 83F specifies who a notice appointing a manager must be served on. This includes the private building surveyor, each local council in whose district the private building surveyor was carrying out work and anyone else the VBA reasonably believes should be served with a notice. Subsection (2) specifies the contents of any such notice.

New section 83G provides that, after service of the notice, a private building surveyor and any partner, officer, employee or agent of that surveyor must not participate in the business except under the supervision of the manager. A penalty of up to 60 penalty units applies.

Subdivision 3—Management of business

New section 83H sets out the powers that a manager of a private building surveyor's business may exercise. Subsection (2) requires that a manager must obtain the consent of a client of a private building surveyor before exercising a power in relation to a client's business.

New section 83I sets out a manager's powers in relation to access to a building or land, the manager's responsibilities in relation to

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taking possession of a document or thing from the building or land, and identification requirements for the manager.

New section 83J provides that the acts of a manager are to be taken to be those of the private building surveyor.

Subsection (1) provides that an act done by a manager of a private building surveyor's business is, for the purposes of proceedings or transactions that rely on that act, taken to have been done by the private building surveyor.

Subsection (2) provides that subsection (1) does not subject a private building surveyor, or partner, officer, employee or agent of that private building surveyor, to any personal liability from any act done by the manager.

New section 83K provides that no liability attaches to a manager or a person acting at the direction of the manager in respect of anything done or omitted to be done in good faith in the carrying out of functions under the Division, or in the reasonable belief that the act or omission was in the carrying out of a function under the Division.

New section 83L provides, in subsection (1), that the expenses of a manager are payable by the VBA from the Building account.

Subsection (2) provides that the VBA may recover an amount paid as expenses as a debt from the private building surveyor.

Subsection (3) provides for money recovered under the section to be paid into the Building account.

New section 83M enables regulations to be made about the accounts to be kept by the manager and the purposes for which money in those accounts may be expended.

New section 83N requires that a manager must maintain records and accounts of the private building surveyor's business separately from both the records and accounts before the manager's appointment and from the records and accounts of any other private building surveyor's business including, if applicable, the manager's own business. The records and accounts must also be maintained in a manner prescribed by regulation.

New section 83O details what reports a manager must give to the VBA.

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New section 83P requires a manager to cooperate with the legal personal representative of a deceased private building surveyor for the winding up of the estate.

Subsection (3) provides that, subject to the other provisions in the section, and subject to the terms of appointment, if the manager was appointed before the death of the private building surveyor, the manager's appointment is not affected by the death.

Subdivision 4—Termination of appointment

New section 83Q sets out the circumstances in which the manager's appointment terminates, including determination by the VBA.

Subsections (3) and (4) set out the manager's rights and responsibilities in relation to transferring documents.

Subsection (5) requires the VBA to serve notice of the termination on all persons originally served with a notice of appointment.

Subdivision 5—Applications to VCAT

New section 83R provides that persons may apply to VCAT for review of the appointment of a manager. VCAT may affirm or set aside the appointment or impose or vary conditions of appointment or make other appropriate orders,

New section 83S enables VCAT to give directions in relation to any matter affecting the management of the private building surveyor's business or the manager's powers, duties or functions under the Division. Those directions may be given on application by the manager, a private building surveyor, or any other person affected by the management.

Subdivision 6—General

New section 83T provides, in subsection (1), that a manager must not disclose information obtained as a result of being manager, except so far as is necessary for exercising the manager's powers or other functions, and as specifically permitted by subsection (2). A penalty of up to 60 penalty units applies.

Subsection (2) permits disclosure to courts and tribunals, other persons acting judicially, the VBA, an employee of the VBA and certain other persons.

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New section 83U makes it an offence to hinder, obstruct or delay a manager carrying out a function under the Division, without reasonable excuse. A penalty of up to 60 penalty units applies.

New section 83V enables an owner to recover money paid to a private building surveyor. Subsection (2) specifies the circumstances in which this money may be recovered. These circumstances are that the private building surveyor has ceased performing the functions of a private building surveyor for a reason specified in new section 83B(1) before completion of those functions for which the private building surveyor was engaged and those functions were not transferred to another private building surveyor or to a manager appointed under new section 83B.

Clause 42 substitutes section 205M(4) of the Building Act to clarify that the VBA must specify a time period in a notice of intention to give a direction under the section within which a building surveyor may make submissions. The period specified must be at least 14 days, except in an emergency.

Clause 43 amends section 216C(4)(a) of the Building Act to provide that a municipal building surveyor acting as a private building surveyor outside his or her municipal district is subject to the same restrictions on being appointed by the builder as other private building surveyors (see clause 39).

Division 6—Regulation of building work

Clause 44 substitutes section 16 of the Building Act. The substitution of section 16 is intended to clarify that the section creates 2 distinct offences in respect of building work that is not exempted from the requirement to have a building permit.

New subsection (1) makes it an offence to carry out building work unless a building permit in relation to the work has been issued and is in force.

New subsection (2) makes it an offence for a person to carry out building work unless the work is carried out in accordance with the Building Act, the building regulations and the permit.

Penalties for both offences remain the same. The maximum penalties are 500 penalty units for natural persons and 2500 penalty units for bodies corporate.

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In addition, new subsections (3) and (4) impose duties on owners of land, and building practitioners and architects to ensure a building permit is in force and that building work is carried out in accordance with the Building Act, the building regulations and the permit.

Subsection (3) requires that an owner of land must not permit building work to be carried out on the land unless a building permit is in force and that building work is carried out in accordance with the Building Act, the building regulations and the permit. Under subsection (5), subsection (3) does not apply if an owner of land engages a building practitioner or architect to carry out the work, reflecting that building practitioners and architects are more likely to be familiar with regulatory requirements.

Subsection (4) requires that a building practitioner or architect who is engaged to carry out building work must ensure that a building permit is in force and the building work is carried out in accordance with the Building Act, the building regulations and the permit. It is intended that this section will apply regardless of whether the person who engaged the building practitioner or architect was the owner of land or another building practitioner or architect.

Subsection (6) provides that the offences under the section do not apply if the work is exempted by or under the Building Act or the regulations.

Clause 45 amends section 24A of the Building Act. Subclause (1) amends subsection (3) to replace a reference to $12 000 with a reference to the prescribed amount. Under new subsection (4) inserted by subclause (2), the prescribed amount is $16 000 unless another amount is prescribed. This amount aligns with the threshold for which a certificate of consent is required to carry out domestic building work with the threshold for which domestic building insurance is required.

Clause 46 further amends section 24A of the Building Act.

Subclause (1) substitutes subsections (1) and (2).

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New subsection (1) simplifies requirements for the issue of building permits for building work that is not domestic building work in 2 ways. First, it imposes restrictions on the issue of the permit only where the amount of the work is estimated to be over $5000 (or another prescribed amount), rather than imposing the restriction on all work as is currently the case. This is intended to align the requirement with subsection (2) regarding domestic building work. Second, it only refers to one builder who is to be specified on the permit as the builder and to be registered under Part 11, not each building practitioner to be engaged in the building work. The builder specified on the building permit is to be responsible for complying with written directions to fix the building work (see clause 49).

New subsection (2) imposes additional checks with respect to domestic building work under a major domestic building contract. In particular, before issuing a building permit, the relevant building surveyor must be satisfied that—

the builder's registration authorises the builder to carry out the work; and

the builder is covered by the required insurance in relation to the building work; and

the builder is to be specified on the building permit as the builder; and

the name and registration number of the builder on the major domestic building contract is the same as on the certificate of insurance; and

each architect is an insured architect; and

the contract was entered into by a person entitled to do so under section 29 of the DBCA.

Subclause (2) amends section 24A(3) of the Building Act to require that a builder who seeks to carry out domestic building work over $16 000 or the prescribed amount (other than under a major domestic building contract) must have a registration under Part 11 that authorises the carrying out of that work.

Subclause (3) substitutes a new section 24A(4) of the Building Act which contains a new definition of prescribed amount that includes a reference to the prescribed amount for the purposes of

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subsection (1) which is $5000 or an amount prescribed by the regulations.

Clause 47 inserts new sections 30A and 30B into the Building Act.

Section 30A enables the VBA to approve a checklist of documents required to be lodged under section 30 of the Building Act and on which the relevant building surveyor will certify that all those documents have been given to the relevant council and the lodgement fee paid. An approved checklist must be published on the Authority's website.

Section 30B requires the relevant building surveyor to make the required certification and to give the checklist (as certified) to the relevant council together with the other documents required to be given under section 30. A penalty of up to 10 penalty units will apply.

Clause 48 inserts a new Division heading "Division 1—Inspections" before section 33 in Part 4 of the Building Act.

Clause 49 substitutes section 37 of the Building Act with a new Division 2 of Part 4 relating to directions to fix non-compliant building work (new sections 37 to 37K).

New section 37 inserts definitions relevant to new Division 2. Among other things, the definitions specify who is an authorised person acting on behalf of the VBA and who is a relevant person.

New section 37A provides that, if after the inspection of building work, the relevant building surveyor, or a person authorised by and acting on behalf of the relevant building surveyor, believes on reasonable grounds that the building work fails to comply with the Building Act, building regulations or building permit, they must give a direction to fix the building work to a relevant person in accordance with the Division.

New section 37B provides that an authorised person may give a direction to fix building work in similar circumstances to those in section 37A.

New section 37C sets out 2 methods for giving directions to fix building work. First, an oral direction can be given to either or both the person named on the building permit as the builder or a

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person apparently in charge of the building work. A written direction to fix building work is given to the person who is specified as the builder in the building permit.

New section 37D provides that the person who gave an oral direction to fix building work must follow up with a written direction to fix the building work if they are not satisfied after 7 days (or another prescribed period) that the building work complies with the Building Act, the building regulations and the building permit.

New section 37E details the contents of directions to fix building work. The things that may be directed to be done in new section 37E(a) are carrying out building work so that the work is made compliant with the Building Act, the building regulations or the building permit. The things that may be directed to be done in new section 37E(b) are to stop any further work that may prevent the relevant building surveyor or authorised person from being satisfied that a direction under section 37E(a) has been complied with.

New section 37F sets out the additional requirements about the form of a written direction to fix building work.

Subsection (1) enables the VBA to approve the form of a direction to fix.

Subsection (2) provides that a written direction to fix building work must specify a period for compliance.

Subsection (3) provides that a written direction to fix building work must state the appeal rights of the builder and that the builder may apply for an extension of the period within which the direction is to be complied with.

New section 37G allows a person to ask for an extension of time for compliance and enables a relevant building surveyor or authorised person to grant that extension of time.

New section 37H makes it an offence for a builder not to comply with a written direction to fix building work within the period specified. A penalty of up to 500 penalty units applies, reflecting a similar penalty for contraventions of section 16. Additionally, similar to section 221ZW(5), a builder is prohibited from demanding or receiving additional payments to fix non-compliant work from the person for whom the defective

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work was carried out. A penalty of up to 50 penalty units applies.

New section 37I provides that a direction may be revoked if the relevant building surveyor or authorised person considers that the person subject to the direction is not able to comply with the direction. A written direction must be revoked in writing.

New section 37J requires the relevant building surveyor or authorised person to provide copies of directions and notices in writing to the relevant owner and prescribed persons in relation to written directions, extensions of time and revocations of directions.

New section 37K requires the relevant building surveyor or an authorised person to notify the VBA and the relevant owner in writing within 7 days after the end of the compliance period.

Clause 50 inserts a new Division heading "Division 3—Certificates of final inspection" before section 38 in Part 4 of the Building Act.

Clause 51 inserts section 118A into the Building Act. Similar to section 221ZZI, proposed section 118A restricts a municipal building surveyor or private building surveyor from serving a building notice on an owner or making a building order in relation to the carrying out of building work, unless it is clear that a direction to fix that building work will not be complied with, or it is not possible or appropriate to give a direction to fix the building work.

Clause 52 inserts section 136(3) into the Building Act. It provides that a builder is taken not to be covered by the required insurance if the name and registration number of the builder specified in the major domestic building contract is not the same as the name and registration number of the builder specified in a certificate of insurance from the insurer who is providing the required insurance.

Clause 53 inserts new section 138A into the Building Act, conferring jurisdiction on the Building Appeals Board to hear appeals in relation to directions to fix building work.

Division 7—Enforcement

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Clause 54 inserts a new Division 2A (Remedies) into Part 13 of the Building Act, relating to enforceable undertakings.

New section 234B(1) provides that the Authority may accept a written undertaking given by a person in connection with a matter in relation to which the Authority has a power or function under the Building Act.

New section 234B(2) provides that with the consent of the Authority, a person may vary or withdraw an undertaking at any time.

New section 234B(3) provides that if the Authority considers that the person who gave the undertaking has failed to comply with any of its terms, the Authority may apply to a court for an order under subsection (4).

New section 234B(4) provides that if the court is satisfied that the person has failed to comply with a term of the undertaking, the court may make any or all of the following orders—orders directing the person to comply with the term of the undertaking; orders directing the person to pay to the State an amount (not exceeding the financial benefit obtained) that is reasonably attributable to the failure to comply; orders directing the person to compensate another person for loss, injury or damage suffered as a result of the failure to comply; orders requiring the person to carry out building work or protection work and any other orders the Court considers appropriate.

New section 234B(5) provides that if a body corporate is found to have failed to comply with an undertaking, each officer of the body corporate who knowingly authorised or permitted the failure may be found liable for the failure, and the court may make orders against those officers.

New section 234C provides that the Authority must give a copy of an undertaking under proposed section 234B to the person who gave the undertaking.

New section 234D provides that the Authority must maintain a register of undertakings. The register must include the name and address of the person who has given an undertaking, as well as the date, and a copy, of the undertaking. The register may be inspected, without charge, by any person at any reasonable time.

Division 8—General

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Clause 55 substitutes section 199 of the Building Act, which is the VBA's power of delegation. The VBA may delegate all its functions to any person except—

the power of delegation (see section 42AA(1) of the Interpretation of Legislation Act 1984); and

the powers to direct building surveyors under section 205M, which can only be delegated to the chief executive officer of the VBA (it should be noted that section 205L is to be repealed by clause 18(10)).

Clause 56 is statute law revision provision to remove redundant references to section 174A and 178 in section 146 of the Building Act which deals with appeals to the Building Appeals Board. Section 174A relates to a decision at first instance by the VBA to suspend registration, which can now be appealed to VCAT under section 182A. Section 178 relates to a decision on an inquiry which can now be appealed to VCAT under section 182A.

Division 9—Transitional provisions

Clause 57 inserts new section 273 into the Building Act which provides that Schedule 8 to the Building Act has effect. Schedule 8 contains transitional and savings provisions.

Clause 58 inserts Schedule 8 into the Building Act, which contains transitional provisions relating to the abolition of the BPB, as well as other matters.

Part 1—Preliminary

Clause 1 inserts definitions of various terms used in the Schedule. In particular, relevant commencement day means—

in relation to Part 2 of the Schedule, the day on which Division 2 of Part 3 of this Bill (which abolishes the Building Practitioners Board) comes into operation; and

in relation to Part 3 of the Schedule, the day on which clause 22 of this Bill (which establishes time-limited registrations) comes into operation.

Clause 2 is a general transitional provision intended to ensure that the Interpretation of Legislation Act 1984 is not limited

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and that the old provisions that continue to apply include subordinate legislation made under those provisions.

Part 2—Building Practitioners Board

Part 2 of Schedule 8 provides for the winding up of the BPB's affairs.

Clause 3 abolishes the BPB, with members of the BPB going out of office. However, if the BPB is expressed to continue for certain purposes, it can do so until those purposes are complete, utilising the old provisions.

Clause 4 enables the BPB to continue an inquiry and any proceedings that commenced and determine applications for review received before the commencement day in accordance with the old provisions and provides for the VBA's costs, including the costs for the BPB to be paid out of the Building account. Certain decisions of the BPB are taken to be decisions of the VBA.

Clause 5 substitutes the VBA for the BPB as party in any proceeding against the members of the BPB in that capacity.

Clause 6 provides that any decision or action taken under the Building Act by the BPB is to be taken to have been done by the VBA so far as it relates to any period after the commencement day.

Clause 7 provides for the VBA to be taken to have issued any certificate of consent issued by the BPB for the period after the commencement day.

Clause 8 provides that the BPB's register of certificates of consent forms part of the VBA's register of certificates of consent.

Clause 9 provides that on and from the commencement day a reference to the BPB in any Act (other than the Building Act or a continued old provision), subordinate instrument, agreement or other document, as far as it relates to any period after the commencement day, is taken to be a reference to the VBA.

Part 3—Building practitioners

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Clause 10 provides for transitional arrangements related to the new 5 year maximum term for registration for building practitioners.

It divides existing building practitioners into 5 classes depending on the year in which the building practitioner was first registered, with the date of re-registration being determined by the anniversary of the issue of the building practitioner's certificate.

Part 4—Building surveyors

Clause 11 provides that amendments to section 79 of the Building Act made by clause 39, dealing with terminations of a private building surveyor's appointment and conflicts of interest, only apply to matters and conflicts that arise on or after the commencement day.

Clause 12 provides that the new powers to recover money from private building surveyors in section 83V inserted by clause 41 applies in relation to private building surveyors appointed before, on or after the commencement day.

Clause 13 provides that the amendments to section 24A of the Building Act relating to applications for permits for building work made by clauses 45 and 46 only apply in respect of new applications for building permits.

Clause 14 provides that the new obligation under section 30B of the Building Act to certify the completeness of returns imposed by clause 47 only applies in relation to building permits issued on or after the relevant commencement day.

Clause 15 provides that the old procedures relating to directions given under section 37 continue to apply to directions given before the relevant commencement day.

Part 5—General

Clause 16 provides that, despite its repeal by clause 68, section 241B of the Building Act (which is an evidentiary provision) continues to apply to any report of an inspector given to the Authority before the repeal.

Part 6—General

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Clause 17 enables temporary regulations to be made dealing with unforeseen transitional matters. These regulations may have a retrospective effect, but only to the date that this Bill receives Royal Assent. Such regulations have effect despite anything to the contrary in any other Act except the Building Act and the Charter of Human Rights and Responsibilities. Regulations made under the clause that expire on or before 1 July 2017 will be exempt from the consultation and regulatory impact statement requirements of the Subordinate Legislation Act 1994. The clause is repealed on 1 July 2019.

Division 10—Amendments relating to dispute resolution

Clause 59 inserts definitions of dispute resolution order and domestic building work dispute into section 3(1) of the Building Act.

Clause 60 inserts section 37HA after new section 37H of the Building Act (see clause 49). New section 37HA provides that a direction may be stayed where the building work that is the subject of the direction is a domestic building dispute accepted for conciliation under the DBCA.

Clause 61 substitutes new section 37I(1) of the Building Act, inserted by clause 49, so that a direction may be revoked if the relevant building surveyor or authorised person considers that the person subject to the direction is not able to comply with the direction, or the building work is the subject of a domestic building work dispute for which a dispute resolution order has been issued, or which has been resolved by conciliation or determined by VCAT.

Clause 62 makes a consequential amendment to new section 37J (inserted by clause 49) arising from the insertion of section 37HA by clause 60.

Clause 63 amends new section 179 of the Building Act to provide that a ground for discipline is that a building practitioner failed to comply with a dispute resolution order. It also provides that the VBA may have regard to assessors' reports where relevant to disciplinary proceedings (see clause 25).

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Clause 64 amends new section 185 of the Building Act (inserted by clause 25) to provide that an application for an internal review of a reviewable decision arising from a failure to comply with a dispute resolution order may be made at any time before that decision ceases to have effect.

Clause 65 amends new section 185B of the Building Act (inserted by clause 25) to provide for additional matters an internal reviewer must take into account when considering an internal review of a reviewable decision arising from a failure to comply with a dispute resolution order.

Clause 66 amends new section 186 of the Building Act (inserted by clause 25) to provide that an application for a VCAT review of a reviewable decision arising from a failure to comply with a dispute resolution order may be made at any time before any disciplinary action ceases to have effect.

Clause 67 amends new section 187 of the Building Act (inserted by clause 25) to provide for similar additional matters VCAT must take into account as those in clause 65.

Clause 68 repeals section 241B of the Building Act as a result of the enactment of new Part 4 of the DCBA by this Bill. This section is no longer required.

Division 11—Amendments to Victorian Civil and Administrative Tribunal Act 1998

Clause 69 inserts Part 2B into Schedule 1 to the VCAT Act.

New clause 4K provides that in relation to applications to stay a decision to immediately suspend a registration, VCAT is to allow VBA to be heard (see clause 25); and

New clause 4L provides that VCAT is permitted to award costs against a building practitioner if the building practitioner relies on evidence that was available but not provided to the VBA in show cause proceedings (see clause 25).

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Clause 70 amends Part 6 of Schedule 1 to the VCAT Act to remove obsolete references to the Building Practitioners Board.

Division 12—Amendments to Domestic Building Contracts Act 1995

Clause 71 amends section 31 of the DBCA to ensure that if the person who manages or arranges domestic building work is different to the person who carries it out, the person who is to carry out the work is named in the contract and their registration number is included.

Clause 72 amends section 124(3) of the DBCA to authorise payments out of the Domestic Builders Fund for advocacy services in relation to domestic building contracts and domestic building disputes.

Part 4—Repeal of amending Act

Clause 73 provides for the automatic repeal of this amending Act on 1 July 2018. The repeal of this Act does not affect in any way the continuing operation of the amendments and repeals made by this Act (see section 15(1) of the Interpretation of Legislation Act 1984).

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