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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BILL LA INTRODUCTION 9/12/2015

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.
8
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
9
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.
10
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.
11
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.
12
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).
13
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.
16
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
17

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—
18

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.
19
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
20

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.
21
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
22



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.
23
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;
24

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
25
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;
26

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.
27
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.
28
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).
29
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
30

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
31

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.
32
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.
33
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
34
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.
35
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—
36

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—
37


the Director must compensate the building owner for—

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.
38
The Director must establish an account with an authorised
deposit-taking institution for the investment of the Fund, and the
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.
39
New section 52A provides that Domestic Building Dispute
Resolution Victoria consists of the chief dispute resolution
officer appointed under section 52C, conciliation officers
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).
40
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
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—
Clause 7

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.
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
41
certificate of conciliation to the party, certifying that the
dispute—

was not suitable for conciliation; or

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.
42
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
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
43
stayed is not to be counted in calculating the period for
compliance with the order.
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.
44
Subsection (5) provides that, if an application for review is made
under the section, any disciplinary action against the builder
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.
45
New section 67A deals with applications by a builder for an
order following the ending of a domestic building contract.
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.
46
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.
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.
47
Division 2—Amendments to Victorian Civil and
Administrative Tribunal Act 1998
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;
48

asking for an adjournment as a result of failing to
comply with an order or direction of VCAT
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—
49

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

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.
50
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
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.
51
New section 172AAC permits a building practitioner to surrender
a registration with the consent of the VBA.
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.
52
Division 2—Codes of conduct for building practitioners
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).
53
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.
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.
54
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
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.
55
Subsection (4) enables the VBA to revoke a suspension if
satisfied the building practitioner is capable of practising.
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.
56
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
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.
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New section 183D enables the VBA to revoke a suspension.
Subsection (1) provides that the VBA may revoke a suspension
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.
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New section 185C specifies which decisions a reviewer can make
with respect to reviewable decisions. This decision is a review
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 regulationmaking 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.
59
Division 4—Regulation of owner-builders
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.
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Subclause (3) substitutes section 25E(2) to restrict the VBA
from issuing a certificate of consent to a person who entered into
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, ownerbuilders 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".
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Clause 38 amends section 78 of the Building Act, inserting new subsections
restricting domestic builders from appointing a private building
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
62
requests an appointment, has had their registration suspended or
cancelled, dies, is in prison, become a represented person,
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.
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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
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.
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New section 83O details what reports a manager must give to
the VBA.
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.
65
Subsection (2) permits disclosure to courts and tribunals, other
persons acting judicially, the VBA, an employee of the VBA and
certain other persons.
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.
66
Penalties for both offences remain the same. The maximum
penalties are 500 penalty units for natural persons and
2500 penalty units for bodies corporate.
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.
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Clause 46 further amends section 24A of the Building Act.
Subclause (1) substitutes subsections (1) and (2).
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.
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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
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.
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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
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
70
from demanding or receiving additional payments to fix
non-compliant work from the person for whom the defective
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.
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Division 7—Enforcement
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.
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Division 8—General
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.
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Clause 2 is a general transitional provision intended to ensure
that the Interpretation of Legislation Act 1984 is not limited
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.
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Part 3—Building practitioners
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.
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Part 6—General
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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