Building Amendment (Registration and Other Matters) Bill 2021



Building Amendment (Registration and Other Matters) Bill?2021 Introduction PrintEXPLANATORY MEMORANDUM591270BILL LA INTRODUCTION 3/8/2021GeneralA Bill for an Act to amend the Building Act 1993 and the Domestic Building Contracts Act 1995 and for other purposes.Clause NotesPart 1—PreliminaryClause 1sets out the purposes of the Bill, which are—to amend the Building Act 1993 (referred to as to the Building Act in this explanatory memorandum)—to provide further in relation to the registration of builders who may only carry out certain building work as subcontractors; andto provide further in relation to the licensing of building employees; andto make other miscellaneous and consequential amendments; and to amend the Domestic Building Contracts Act 1995 to make consequential amendments.Clause 2sets out when the provision of the Bill come into operation.Subclause (1) provides that Parts 1 and 2, sections 50 to 53 and Part 4 of this Act come into operation on the day after the day on which the Act receives the Royal Assent.Subclause (2) provides that, subject to subsection (3), this Act comes into operation on a day or days to be proclaimed.Subclause (3) provides that, if a provision of this Act does not come into operation before 3 August 2022, it comes into operation on that day.Part 2—Amendments relating to registration of builder subcontractors and licensing of building employeesDivision 1—Amendment of the Building Act 1993Clause 3amends section 1(d) of the Building Act, which currently sets out that one of the main purposes of this Act is to regulate building and plumbers, to add "building employees".Clause 4amends section 3(1) of the Building Act to insert new definitions or substitute existing definitions.Subclause (1) inserts new definitions of class of licence, class of?registration, provisionally registered builder subcontractor, registered builder subcontractor and training plan. This subclause also inserts notes at the foot of the new definitions of provisionally registered builder subcontractor and registered builder subcontractor.Subclause (2) substitutes the definitions of provisional registration and registered building practitioner.Clause 5amends section 24A(1)(a) and (b) of the Building Act, which provides for further limitations on the issue of building permits. It clarifies that the building work is to be carried out by a person who is specified under section 24B of the Building Act as the builder for that work and that the person is to be named in the building permit as the builder.Clause 6substitutes section 24B(3)(a) of the Building Act, which deals with the naming of a certain person as the builder on a building permit. Subclause (1) clarifies that a registered building practitioner under section 24B(3) does not include a provisionally registered builder subcontractor or a registered builder subcontractor. Subclause (1)(b) repeals section 24B(3)(ab) as a consequence of the amendment under subclause (1)(a).Subclause (2) substitutes a new section 24B(4)(b) of the Building Act to specify that under subsection 24B(4) a builder must be a person that is registered under Part 11, not including registration or provisional registration as a builder subcontractor, and the registration authorises the carrying out of that work.Clause 7amends section 25AC of the Building Act, regarding a change of builder on a building permit, to add a reference to section 24B in section 25AC. The purpose of this clause is to specify that on being notified under section 25AB or 25AA(2), the relevant building surveyor may change the builder named on a building permit if the relevant building surveyor is satisfied of the relevant requirements of sections 24A and 24B.Clause 8amends sections 25AE(2) of the Building Act, which deals with?the suspension of building permits, to add a reference to section 24B.Clause 9amends section 25B of the Building Act, which deals with restrictions on an owner-builder carrying out domestic building work. Subclause (1) amends section 25B(1)(b) to clarify that an owner builder carrying out domestic building work that costs more than the prescribed amount can be a builder registered under Part 11 for which the registration authorises the carrying out of that work, but this does not include a registered builder who is a provisionally registered builder subcontractor or a registered builder subcontractor.Subclause (2) amends section 25B(1A) of the Building Act, which provides an offence for an owner of land or a building when entering into major domestic building contract with another person, to clarify that that the person must be a builder registered under Part 11 for which the registration authorises the carrying out of that work, but this does not include a registered builder who is a provisionally registered builder subcontractor or a registered builder subcontractor.Clause 10substitutes section 57(1)(b) of the Building Act, which deals with occupancy permits for a prescribed temporary structure, to provide that an occupancy permit may be issued on condition that the erection of the temporary structure is carried out by a registered building practitioner or a licensed building employee.Clause 11amends section 137B of the Building Act, which provides for an offence if an owner-builder enters into a contract to sell a building without meeting certain requirements, to specify in section 137B(1)(a) that section 137B does not apply to the construction of a building by a registered building practitioner other than a registered builder subcontractor or a registered builder subcontractor.Clause 12amends section 169(2) of the Building Act to replace the reference to section 171(1)(a) with a reference to section 171(1)(a) or (ab), so that section 169(2) provides it is an offence if a person, who is provisionally registered in a class of builder under section 171(1)(ac), represents or implies they are registered as a builder under section 171(1)(a) or registered as a builder subcontractor under section 171(1)(ab) in that class of builder.Clause 13inserts new section 169AA into the Building Act to provide 2?offences if a certain registered builder acts as a head builder. New section 169AA(1) provides it is an offence if a provisionally registered builder subcontractor enters into a contract with the owner of a building or land for the carrying out of building work at that building or on that land if the cost of the building work exceeds the amount prescribed for the purposes of section 24B(2) and the building work is either domestic building work or building work that requires a building permit.New section 169AA(2) provides it is an offence if a registered builder subcontractor enters into a contract with the owner of a building or land for the carrying out of building work at that building or on that land if the cost of the building work exceeds the amount prescribed for the purposes of section 24B(2) and the building work is either domestic building work or building work that requires a building permit.New section 169AA(3) specifies that if the building work is to be?carried out in stages under a series of separate contracts, the initial agreement and subsequent contracts are considered to be a?single contract.New section 169AA(4) provides a definition for the cost of the building work which includes any increase to the contract price resulting from a variation to the building work.Clause 14amends section 169EA of the Building Act, which provides for an offence to carry out certain types of building work unless registered or licensed or exempted from the offence.Subclause (1) inserts into section 169EA(1) a definition of relevant building work, for a type of building work that is prescribed for the purposes of section 169EA.Subclause (2) makes consequential amendments to section?169EA(2).Subclause (3) inserts new section 169EA(3) into the Building Act?to provide an exemption from the offence against section 169EA(1) if a person applies for a registration under section 171(1)(ab) or an employee building licence under section 187F, which authorises the carrying out of the relevant building work, before the person completes a training contract referred to in subsection (2) to carry out that relevant building work, during the period beginning after the completion of the training contract and ending on whichever of the following days occurs latest—the day on which the Victorian Building Authority (the?Authority) determines the person's application for the registration or licence;if applicable, the day on which the Authority makes a reviewable decision in relation to that determination;if applicable, the day on which the Victorian Civil and Administrative Tribunal (VCAT) makes a decision in relation to that determination.Subclause (3) also inserts new section 169EA(4) into the Building Act to provide an exemption from the offence against section 169EA(1) in relation to the carrying out of building work if—the person has been granted an exemption by the Authority under section 169EB in relation to the carrying out of the relevant building work; andthe person carries out the relevant building work while?employed by a builder registered under section?171(1)(a) or a registered builder subcontractor registered under section 171(1)(ab), whose registration authorises the carrying out of the relevant building work?and who is the employing builder referred to in the?exemption, including an exemption as varied by the Authority under section 169EB(8) of the Building Act; andat the time of carrying out the relevant building work the exemption is in force.Subclause (4) inserts a note at the foot of section 169EA relating to the transitional provisions in section 282(1) and (2) of the Building Act that provide for other circumstances in which the offence against section 169EA(1) does not apply.Clause 15inserts new section 169EB into the Building Act to provide for the Authority to grant exemptions from an offence against section?169EA(1). New section 169EA(1) provides that a natural?person may apply to the Authority for an exemption in relation to the carrying out of a type of building work prescribed for the purposes of section 169EA (the relevant building work).New subsection (2) sets out the requirements for an application to?be exempted from the offence, including, amongst other requirements that the application must include—a statement by the employing builder that they intend to employ the applicant during the period of exemption; andevidence that the applicant holds the prescribed qualification for registration as a as a registered builder subcontractor under section 171(1)(ab) in a class of builder that authorises the carrying out of the type of building work for which the exemption is to apply, or is, enrolled in a course to obtain such a qualification; orevidence that the applicant holds the prescribed qualification for a building employee licence under section 187F(1) in a class of building employee that authorises the carrying out of the type of building work for which the exemption is to apply, or is, enrolled in a course to obtain such a qualification.New subsection (3) provides that the Authority may grant an exception if—the application complies with section 169EB(2); andthe Authority is satisfied that the statements and evidence provided in or with the application are true and?correct; andthe applicant has provided any other information required by the Authority.New subsection (4) provides that, in deciding whether to grant an exemption under section 169EB(3), the Authority may take into account any matters that it thinks fit, including any particular circumstances that apply in relation to the exemption application.New subsection (5) provides that the Authority may grant an exemption under section 169EB(3) for a period of no more than 3?years.New subsection (6) provides that a person granted an exemption under section 169EB(3) may apply to the Authority to vary the exemption to change the details of the employing builder.New subsection (7) provides that the same requirements for an exemption under section 169EB(1) apply to an application to vary an exemption under subsection (6) except the requirement under subsection (2)(d)(i) to provide a recent photograph of the applicant.New subsection (8) provides that the Authority may vary an exemption given under subsection (3) to change the details of the employing builder if the application for the variation complies with the requirements for making an application subsection (7) and the Authority is satisfied that the statement by the new employing builder provided in the application is true and correct.New subsection (9) sets out the circumstances in which an exemption granted under subsection (3), including as varied under subsection (8), ceases to have any force. An exemption cease to have any force for any part of the period of the exemption during which the person is not employed by the employing builder or has ceased to be enrolled in a relevant course referred to in section 169EA(2)(d) without completing that course. An exemption also ceases to have any force immediately after the period of the exemption expires.Clause 16amends section 169F of the Building Act which provides it is an offence if a person carries out work under a major domestic building contract and provides for exemptions to the offence.Subclause (1) amends the heading to section 169F to clarify that the offence applies to the carrying out of work under a major domestic building contract.Subclause (2) amends section 169F(1) to provide that the offence against this provision does not apply to a licensed building employee, in addition to the offence not applying to a registered builder.Subclause (3)(a) amends section 169F(2)(a) and (b) to clarify that?the offence against subsection (1) does not apply to an unregistered person who carries out domestic building work under, or in accordance with, a major domestic building contract in partnership with, or as an employee of, a builder registered under section 171(1)(a) whose registration authorises the carrying out of that work.Subclause (3)(b) amends section 169F(2)(c) to clarify that the offence against subsection (1) does not apply to an unregistered person who carries out domestic building work under, or in accordance with, a major domestic building contract as a subcontractor of a builder registered under section 171(1)(a), whose registration authorises the carrying out of that work, in accordance with a subcontract with the registered builder.Subclause (3)(c) inserts new section 169F(2)(d) which provides that the offence against subsection (1) does not apply to an unregistered person who carries out domestic building work under, or in accordance with, a major domestic building contract as a subcontractor or employee of a subcontractor referred to in section 169F(2)(c) in accordance with a subcontract with that subcontractor or in the course of the person's employment with that subcontractor (as the case applies).Subclause (4) inserts a new definition of licensed building employee in section 169F(5) of the Building Act.Clause 17inserts a note at the foot of section 169FA of the Building Act that refers to the exemption from the offence against section 169FA(1) in circumstances provided under the transitional provision in section 282(3).Clause 18amends section 169FB of the Building Act, which provides for?an?offence if a person directs or requires another person (the?directed person) to carry out a type of building work prescribed for the purposes of section 169EA and for exemptions?to the offence. Specifically, subclause (1) inserts new section 169FB(2A) to provide that the offence against section 169FB(1) does not apply to a person if—the directed person has been granted an exemption under section 169EB in relation to carrying out a type of?building work prescribed for the purposes of section?169EA and the exemption is in force; andthe person is the employing builder (within the meaning of section 169EB) or a person acting on behalf of that employing builder.Subclause (2) inserts a note at the foot of section 169FB that refers to the exemption from the offence against section 169FB(1) in circumstances provided under the transitional provision in section 282(4).Clause 19amends section 170 of the Building Act, which provides for who may apply for registration under Part 11 of the Building Act. Subclause (1) substitutes section 170(1) to provide that an application for registration as a building practitioner, including as a registered builder subcontractor or a provisionally registered builder subcontractor, may be made by a natural person or a body corporate.Subclause (2) substitutes section 170(2) to provide that an application for registration as a builder subcontractor or for provisional registration may only be made in respect of a class of builder that authorises the carrying out of a type of building work prescribed for the purposes of section 169EA; and in the case of provisional registration, must be made—within 12 months after that type of building work is prescribed; orif the Authority considers that exceptional circumstances apply in respect of the application, within any longer period determined by the Authority which must not in total exceed 24 months after that type of building work is prescribed.Subclause (2) also inserts new section 170(3)(a) into the Building Act to provide that the Authority must refuse an application for a provisional registration that is not made within the period of time allowed under subsection (2). The purpose of this provision is to limit the Authority's power to grant an application for provisional registration to the 2 circumstances set out under subsection (2)—if an application is made within 12 months after the relevant building work is prescribed; or if an application is made within 12?to 24 months after?the relevant building work is prescribed and the Authority considers that exceptional circumstances apply in respect of the application.Subclause (2) also inserts new section 170(3)(b) into the Building Act to provide that the Authority must refuse an application for a provisional registration in a class of builder if the person has previously been granted a provisional registration in that class of builder. The purpose of this provision is to enable a person to hold a provisional registration in a specific class of builder only once.Clause 20inserts new section 170A(ca) into the Building Act, to provide that an application for registration must, in the case of an application in the category of a builder, state whether the registration is sought under section 171(1)(a), (ab) or (ac).Clause 21amends section 171 of the Building Act, which provides for the registration of builders. Specifically, subclause (1) amends section 171(1)(a) to replace the reference to "provisional registration" with references to "paragraph (ab)", relating to registration as a builder subcontractor, and to "paragraph (ac)", relating to registration as a provisionally registered builder subcontractor. Subclause (1) also amends section 171(1)(a)(i) to?require the Authority to be satisfied that an applicant for registration as a builder under section 171(1)(a) holds the prescribed qualification and the prescribed experience for the registration. Subclause (1) also amends section 171(1)(a)(ii) to insert "knowledge" into the list of matters of which the Authority may be satisfied of in relation to an applicant for registration as a builder under section 171(1)(a).Subclause (2) substitutes section 171(1)(ab) to set out the requirements for registration as a builder in a class of builder that authorises the carrying out of a type of building work prescribed for the purposes of section 169EA, if the applicant is a natural person. New section 171(1)(ab) provides for registration as a builder subcontractor. Subclause (2) also inserts a note at the foot of section 171(1)(ab), to clarify that a registration under section 171(1)(ab) is subject to a certain condition provided under section 171H.Subclause (3) inserts new section 171(1)(ac) to set out the requirements for provisional registration as a builder in a class of builder that authorises the carrying out of a type of building work prescribed for the purposes of section 169EA, if the applicant is a natural person. New section 171(1)(ac) provides for provisional registration as a builder subcontractor.Subclause (3) also inserts a note at the foot of section 171(1)(ac), to clarify that a provisional registration under section 171(1)(ac) is subject to a certain condition provided under section 171H.Subclause (4) substitutes section 171(1)(b) to provide for the additional requirements for registration of a body corporate. The?additional requirements for provisional registration of a body corporate as a builder subcontractor under section 171(1)(ac) are the requirements set out in sections 171A(2)(b) for each director and 171B for a nominee director. For an applicant for provisional registration of a body corporate as a builder subcontractor under section 171(1)(ac), the requirements of section 171A(2)(a) for each director, being the personal probity requirements set out in section 171D and the financial probity requirements set out in section 171E, do not apply.Under section 171(1)(b) as amended by subclause (4), the additional requirements for registration of a body corporate as a?builder registered under section 171(1)(a) or as a builder subcontractor registered under section 171(1)(ab) are the requirements set out in sections 171A for each director and 171B for a nominee director.Subclause (5) amends section 171(1)(d) to provide that for an applicant, who is a natural person, applying for provisional registration as a builder subcontractor, the personal probity requirements set out in section 171D and the financial probity requirements sent out in section 171E do not apply.Subclause (6) substitutes section 171(1A) to provide that if the applicant is a body corporate that has applied for registration in a class of builder and a nominee director of the body corporate referred to in section 171B(2)(a) or (b) is—registered as a provisional builder subcontractor in that?class, the body corporate can only be granted registration as a provisional builder subcontractor in that?class; orregistered as a builder subcontractor in that class, the body corporate can only be granted registration as a builder subcontractor in that class.Subclause (7) inserts new section 171(2A) to provide that if the Authority determines to refuse an application for registration as a?builder subcontractor under subsection (1)(ab) solely on the ground that the applicant does not meet the requirements in that subsection, the Authority may, with the consent of the applicant, determine the application as if it were an application made under section 170 for a provisional registration.Clause 22amends section 171A(2)(a) of the Building Act to provide that the additional requirements for registration where the applicant is?a body corporate under section 171A(2)(a) do not apply to an application for provisional registration as a builder subcontractor.Clause 23amends section 171C(2)(a) of the Building Act to provide that, where an applicant is a member of a partnership, the additional requirements for each other member of a partnership under section 171C(2)(a) do not apply to an application for provisional registration as a builder subcontractor.Clause 24amends section 171D of the Building Act, which deals with personal probity requirements of a person in relation to an application for registration. Specifically, subclause (1) clarifies that subsection (1) applies in relation to an application for registration as a builder under section 171(1)(a).Subclause (2) inserts new section 171D(2) to provide that, for the?purposes of an application for registration as a builder subcontractor under section 171(1)(ab), the probity requirements are whether, in the last 5 years, any of the matters in subsection?(1) apply to the person.Clause 25amends section 171E(1) of the Building Act, which deals with financial probity requirements of an application for registration. Specifically, subclause?(1) provides that subsection (1) provides for the financial probity requirements for an application for registration as a builder under section 171(1)(a).Subclause (2) inserts new section 171(1A) to set out the financial probity requirements for an application for registration as a builder subcontractor under section 171(1)(ab).Clause 26substitutes section 171G(2)(ba) with a new section 171GA(1)(ba) and (bb) of the Building Act. Section 171GA requires the Authority to issue a certificate of registration to a person granted registration as a building practitioner. New paragraph (ba) provides that the certificate must specify the category of building practitioner and class of building practitioner (if applicable) and, in the case of a builder, whether the registration is for a provisionally registered builder subcontractor or a registered builder subcontractor. New paragraph (bb) provides that the certificate must specify the expiry date of the registration.Clause 27inserts new section 171GA(2)(ab) and (ac) into the Building Act. New paragraph (ab) provides that the registration card issued by the Authority to a natural person must specify the category of building practitioner and class of building practitioner (if?applicable) and, in the case of a builder, whether the registration is provisional or that of a builder subcontractor. New?paragraph (ac) provides that the certificate must specify the expiry date of the registration.Clause 28inserts new section 171H(1A), (1B) and (1C) into the Building Act. New subsection (1A) provides that it is a condition of a provisional registration and registration of a builder subcontractor that the person holding the registration must not carry out any building work of a type prescribed for the purposes of section?169EA other than—as a subcontractor unless the cost of the building work does not exceed the amount prescribed for the purposes of section 24B(2); or the building work is not domestic building work and does not require a building permit; oras an employee.New section 171H(1B) provides it is a condition of a provisional registration that the person holding the registration must comply with the requirements of a training plan (if any) during the period of that registration.New section 171H(1C) provides that for the purposes of subsection (1B) the Authority may prepare a training plan which?must—contain any requirements determined by the Authority; andcontain the prescribed requirements (if any); andbe in a form approved by the Authority.Clause 29inserts new section 171I(3) into the Building Act, relating to the period of registration, to provide that if a person who holds a provisional registration applies for registration under section 171(1)(a) or (ab) before the provisional registration expires, the period of the provisional registration is extended to whichever of the following days occurs latest—the day on which the Authority determines the person's application for the registration;if applicable, the day on which the Authority makes a reviewable decision in relation to that determination;if applicable, the day on which VCAT makes a decision in relation to that determination.Clause 30amends the heading to Subdivision 3 of Division 1A of Part 11 of the Building Act to add a reference to "training plans".Clause 31amends section 172 of the Building Act to provide for training plan reports in addition to annual fees and proofs of insurance. Subclause (1) amends the heading of section 172 to refer to "training plan report".Subclause (2) substitutes "the building practitioner" for "the?applicant" in section 172(1)(b).Subclause (3) amends section 172(1)(b)(ii) to add the word "and".Subclause (4) inserts new section 172(1)(c) to provide that a building practitioner who is a provisionally registered builder subcontractor must, on each anniversary of the practitioner's registration, report to the Authority on the builder's progress in?complying with a training plan (if applicable), the compliance?with which is a condition of the registration under section?171H(1B).Clause 32amends section 187A of the Building Act, which provides for an?application by a natural person to be licensed as a building employee. Subclause (1) clarifies that subsection (1)is subject to?new subsection (3) and that this section also applies to an application by a natural person to be provisionally licenced.Subclause (2) inserts new section 187A(2) to provide that an application for a provisional licence must be made within 12?months after a type of building work is prescribed for the purpose of section 169EA, or if the Authority considers that exceptional circumstances apply in respect of the application, within any longer period determined by the Authority, which must not in total exceed 24 months after that type of building work is prescribed.Subclause (2) also inserts new section 187A(3)(a) to provide that?the Authority must refuse an application for a provisional licence that is not made within the period of time allowed under subsection (2). The purpose of this provision is to limit the Authority's power to grant an application for a provisional licence to the 2 circumstances set out under subsection (2)—if an application is made within 12 months after the relevant type of building work is prescribed; orif an application is made within 12 to 24 months after the relevant type of building work is prescribed and the Authority considers that exceptional circumstances apply in respect of the application.Subclause (2) also inserts new section 187A(3)(b) to provide that the Authority must refuse an application for a provisional licence in a class of building employee if the person has previously been granted a provisional licence in that class of building employee. The purpose of this provision is to enable a person to hold a provisional licence in a specific class of building employee only once.Clause 33inserts new section 187B(ca) into the Building Act, to clarify that one of the requirements of an application to be licensed as a building employee is that the application must state if the application is for a licence under section 187F or a provisional licence under section 187G.Clause 34amends section 187F of the Building Act under which the Authority may issue a building employee licence. Subclause (1) amends the heading of this section to clarify that it does not apply to a provisional licence.Subclause (2) substitutes "class of licence" (where first occurring) with "class of building employee".Subclause (3) substitutes section 187F(1)(a) with section 187F(1)(a), (ab) and (ac). New paragraph (a) provides that the Authority must license an applicant as a building employee if the Authority is satisfied that the applicant holds, amongst other requirements—the prescribed qualification for the licence; or(unless the regulations otherwise provide in relation to a?particular class) a qualification, that the Authority considers is, either alone or together with any further knowledge, certificate, authority, experience or examination, equivalent to the prescribed qualification.New paragraphs (ab) and (ac) provide that the Authority must license an applicant as a building employee if the Authority is satisfied that the applicant, amongst other requirements, has any prescribed experience for the licence and has or holds any prescribed prerequisite for the licence.Subclause (4) inserts new section 187F(2A) to provide that if the Authority determines to refuse an application for licence under section 187F solely on the ground that the applicant does not meet the requirements in subsection (1) the Authority may, with the consent of the applicant, determine the application as if it were an application made for a provisional licence under section?187A.Clause 35substitutes section 187G of the Building Act, to provide that the Authority must grant a provisional licence to an applicant as a building employee in a class of building employee if the Authority is satisfied that the applicant—holds the prescribed qualification for the licence; or (unless the regulations otherwise provide in relation to a?particular class) a qualification, that the Authority considers is, either alone or together with any further knowledge, certificate, authority, experience or examination, equivalent to the prescribed qualification; or the prescribed knowledge for the licence; andhas any prescribed experience for the licence; and has or holds any prescribed prerequisite for the licence; and has paid the appropriate application fee determined in accordance with the guidelines under Division 1 of Part?12 of the Building Act or prescribed by the regulations; and meets any other prescribed requirements.New section 187G(2) provides that the Authority must not grant a provisional licence under subsection (1) if it is not satisfied of the matters specified in subsection (1). The Authority must also refuse an application for a provisional licence for reasons set out in section 187A(3).New section 187G(3) provides that the Authority is not required to conduct a hearing to determine whether to grant a provisional licence or refuse to grant a provisional licence.Clause 36amends section 187H of the Building Act to provide for new conditions of licences. Specifically, this clause inserts new section 187H(1A) to provide that it is a condition of a licence that?the person holding the licence must not carry out any building work of a type prescribed for the purposes of section?169EA as a subcontractor unless the person holds a registration under Part 11 to carry out that type of building work.??New section 187H(1B) provides that it is a condition of a?provisional licence that the person holding the licence must comply with the requirements of a training plan during the period of that licence. New section 187(1C) provides that for the purposes of subsection (1B) the Authority may prepare a training plan which must contain any requirements determined by the Authority; and the prescribed requirements (if any). It also provides that the training plan must be in a form approved by the Authority.Clause 37amends section 187I of the Building Act to provide for new specifications for the period of a provisional building employee licence. Specifically this clause inserts new section 187I(4) to provide that if a person who holds a provisional licence applies for a licence under section 187F before the provisional licence expires, the period of the provisional licence is extended to whichever is the latest of the following days—the day on which the Authority determines the person's application for the licence;if applicable, the day on which the Authority makes a reviewable decision in relation to that determination;if applicable, the day on which VCAT makes a decision in relation to that determination.Clause 38substitutes section 187J(2)(c) of the Building Act, regarding licence certificates, to clarify that a licence certificate issued by?the Authority must specify the class of building employee relating to the licence and if the licence is a provisional licence.Clause 39amends the heading to Subdivision 3 in Part 11A of the Building Act to add a reference to "training plan report".Clause 40amends section 187L of the Building Act, which currently deals with periodic licence fees and statement. Specifically, subclause (1) amends the heading to section 187L to adds a reference to "training plan report". Subclause (2) amends section 187L(b)(iv) to add "and".Subclause (3) inserts new section 187L(c) to provide that a provisionally licensed building employee must, at the end of each prescribed period after the granting of the provisional licence to the employee, report to the Authority on the building employee's progress in complying with a training plan.Clause 41amends section 204(2) of the Building Act, under which the Authority may engage persons under certain arrangements, to clarify that the Authority may exercise this power to assist in the performance of any of its functions. Section 197 of the Building Act sets out the functions of the Authority.Clause 42amends section 261(1) of the Building Act, which sets out the general powers of the Governor in Council to make regulations. Specifically, subclause (1) amends section 261(1)(eb) to clarify it?enables the prescribing of classes of registered building practitioners. Subclause (2) amends section 261(1)(ec) to clarify that it enables the prescribing of licenced building employees. Subclause (3) substitutes section 261(1)(f), to provide it enables the making of regulations for or with respect to the qualifications for registration in a category or class of registered building practitioner or for a licence in a class of building employee—including but not limited to degrees, diplomas, certificates, accreditations, authorities, examinations, assessments and periods of training or experience; andwhether the qualification, training or experience was obtained or completed inside or outside Victoria.Subclause (4) substitutes section 261(1)(g) of the Building Act to?provide it enables the making of regulations for or with respect to examinations or assessments for registration in the different categories or classes of building practitioner and for granting licences in the different classes of building employee, including the determination of the subjects to be examined or assessed, the conduct of examinations and assessments and eligibility for an examination or assessment.Subclause (5) substitutes section 261(1)(h) of the Building Act to provide it enables the making of regulations for or with respect to the conditions prerequisite to registration in a category or class of building practitioner or to granting a licence in a class of building employee including but not limited to conditions as to age, training, experience and authority to practise and carry out building work.Subclause (6) substitutes section 261(1)(ha) of the Building Act to provide it enables the making of regulations for or with respect to specifying the work that a category or class of a registered building surveyor or registered building inspector is authorised to carry out by that registration.Subclause (7) substitutes section 261(1)(hb) of the Building Act to provide it enables the making of regulations for or with respect to specifying the building work that a category or class of a registered builder (including a provisionally registered builder) is authorised to carry out by that registration.Subclause (8) substitutes section 261(1)(hc) of the Building Act to provide it enables the making of regulations for or with respect to specifying the building work that a class of licensed building employee (including a provisionally licensed building employee) is authorised to carry out by the licence.Clause 43amends section 275 of the Building Act, which currently deals with general transitional and savings provisions relating to the Building Amendment (Registration of Building Trades and Other Matters) Act 2018.Specifically, subclause (1) repeals section 275(1), (2), (3) and (4) of the Building Act. The effects of the transitional arrangements under repealed section 275(1), (2), (3) and (4) of the Building Act are incorporated into new section 282 of the Building Act inserted by clause 45.Subsection (2) amends section 275(9) to substitute "2018;" with "2018." and to repeal the definitions of relevant building work and unregistered person.Clause 44amends section 276 of the Building Act, which enables the making of regulations containing provisions of a transitional, application or saving nature arising as a result of the Building Amendment (Registration of Building Trades and Other Matters) Act 2018 (the old amending Act). This clause amends section?276(6) to provide that section 276 expires on 1?September?2027. The purpose of changing the expiry date from 1 September 2022 to 1?September?2027 is to recognise that?a longer period of time needs to be provided in which transitional regulations can be made to support implementation of?the old amending Act together with Part 2 of this Bill.Clause 45inserts new sections 282 and 283 into the Building Act.New section 282 provides for transitional and savings provisions arising as a result of the proposed amending Act (the amending Act, which is a defined term under section 282(7)). Specifically section 282 (1) provides that section 169EA, as amended by section 14 of the amending Act, does not apply to a person who carries out a type of building work prescribed for the purposes of section 169EA (relevant building work, which is a defined term under section 282(7)) or any aspect of that building work under a contract to carry out that building work, including a subcontract, if the person entered into that contract before the relevant building work was prescribed for the purposes of section 169EA.Section 282(2) provides that section 169EA, as amended by section 14 of the proposed amending Act, does not apply to a person who carries out, as a subcontractor or as an employee, relevant building work during the following periods—the allowed period after the relevant building work is?prescribed for the purposes of section 169EA. (The?term allowed period is defined in section 282(7));if the person applies for registration as a builder (under section 171(1)(ab) as substituted by section 21(2) of the proposed amending Act or under section 171(1)(ac) as inserted by section 21(3) of the proposed amending Act)?or for a licence as a building employee (under section 187F as amended by section 34 of the proposed amending Act or under section 187G as substituted by section 35 of the proposed amending Act) to carry out the relevant building work during the allowed period but the Authority does not grant the registration or licence during that period, the allowed period as extended to whichever of the following days occurs latest—the day on which the Authority determines the person's application for the registration or licence;if applicable, the day on which the Authority makes a reviewable decision in relation to that determination;if applicable, the day on which VCAT makes a decision in relation to that determination.Section 282(3) provides that section 169FA does not apply to a person who engages an unregistered person as a subcontractor to carry out relevant building work during the following periods—the allowed period after the relevant building work is prescribed for the purposes of section 169EA;if the person to be engaged as a subcontractor applies for registration as a builder (under section 171(1)(ab) as?substituted by section 21(2) of the proposed amending Act or under section 171(1)(ac) as inserted by?section 21(3) of the proposed amending Act) to carry?out the relevant building work during the allowed period but the Authority does not grant the registration during that period, the allowed period as extended to whichever of the following days occurs latest—the day on which the Authority determines the person's application for the registration;if applicable, the day on which the Authority makes a reviewable decision in relation to that determination;if applicable, the day on which VCAT makes a decision in relation to that determination.Section 282(4) provides that Section 169FB, as amended by section 18(1) of the proposed amending Act, does not apply to a?person who directs or requires a person to carry out relevant building work during the following periods—the allowed period after the relevant building work is prescribed for the purposes of section 169EA;if the person directed or required to carry out the relevant building work applies for registration as a builder (under section 171(1)(ab) as substituted by section 21(2) of the proposed amending Act or under section 171(1)(ac) as inserted by section 21(3) of the proposed amending Act) or for a licence as a building employee (under section 187F as amended by section 34 of the proposed amending Act or under section 187G as substituted by section 35 of the proposed amending Act) to carry out the relevant building work during the allowed period, but the Authority does not grant the registration or licence during that period, the allowed period as extended to whichever of the following days occurs latest—the day on which the Authority determines the person's application for the registration or licence;if applicable, the day on which the Authority makes a reviewable decision in relation to that determination;if applicable, the day on which VCAT makes a decision in relation to that determination.Section 282(5) provides that the amendments made to section?169F by section 16 of the proposed amending Act apply?only to offences alleged to have been committed on or?after?the commencement of section 16 of the proposed amending Act.Section 282(6) provides that, for the purposes of subsection (5), if an offence is alleged to have been committed between 2 dates and section 16 of the proposed amending Act commences on a date between those 2 dates, the offence is alleged to have been committed before the commencement of section 16 of the proposed amending Act.Section 282(7) provides a definition of allowed period to mean the period allowed within which an application may be made—in the case of a provisional registration, under section?170(2)(b) as inserted by section 19(2) of?the?proposed amending Act; or in the case of a provisional licence, under section?187A(2) as inserted by section 32(2) of?the?proposed amending Act.Under sections 170(2)(b) and 187A(2), the allowed period is—within 12 months after the relevant type of building work is prescribed for the purposes of section 169EA; or if the Authority considers that exceptional circumstances apply in respect of the application, within?any longer period determined by the Authority, which must not in total exceed 24 months after that type?of building work is prescribed for the purposes of section 169EA.Section 282(7) also provides definitions for the purposes of section 282 of amending Act, old amending Act, relevant building work and unregistered person.Section 282(8) sets out several transitional provisions to clarify that references to certain sections in section 282(1) to (6) means a reference to those certain sections inserted by the old amending Act, which is the Building Amendment (Registration of Building Trades and Other Matters) Act 2018.New section 283 enables the Governor in Council to make regulations of a transitional nature including matters of an application or savings nature, arising as a result of the enactment of the Building Amendment (Registration and Other Matters) Act 2021, including any repeals and amendments made as a result of the enactment of that Act.Section 283(6) provides that section 283 is repealed on 1?September?2027.Division 2—Amendment of the Domestic Building Contracts Act?1995Clause 46amends section 29(5) of the Domestic Building Contracts Act?1995, by substituting the definition of registered building practitioner to clarify that the meaning of "registered building practitioner" has the same meaning as in section 3(1) of the Building Act but does not include a person who holds a provisional registration or who is a registered builder subcontractor within the meaning of the Building Act.Part 3—Other amendments to the Building Act 1993Clause 47amends section 14 of the Building Act, which provides for the accreditation of building products. Specifically, subclause (1) amends section 14(1) to insert the following terms—a building product for "a building product, construction method, design, component or system connected with building work"; and a prescribed person or body for "any other person or body prescribed for the purposes of this section".Subclause (2) inserts new section 14(1A) to provide that a person may apply, in accordance with the regulations, to the Building Regulations Advisory Committee or a prescribed person or body to have a building product accredited.Subclause (2) also inserts new section 14(1B) to provide that the Building Regulations Advisory Committee or the prescribed person or body (as the case requires) may accredit the building product in accordance with the regulations and, on accrediting the building product, must issue a certificate of accreditation in the prescribed form to the holder of the accreditation.Subclause (3) amends section 14(3) to clarify that an accreditation, if still in force, may be renewed by the Building Regulations Advisory Committee or the prescribed person or body receiving an application for a renewal of the accreditation by the holder of the accreditation that is in accordance with the regulations.Subclause (4) inserts new section 14(5) to provide for a variation of an accreditation. It provides that the Building Regulations Advisory Committee or the prescribed person or body may, in accordance with the regulations, vary the accreditation in respect of any one or more of the prescribed matters, on receiving an application to vary the accreditation from the holder of the accreditation, which is in accordance with the regulations.Clause 48repeals section 14A of the Building Act as a consequence of clause 47(2) inserting new section 14(1B), which provides for the?issue of a certificate of accreditation.Clause 49substitutes a new section 15 of the Building Act, to provide for the approval of building work in relation to an accreditation referred to in section 14(1). It provides that the relevant building surveyor must not refuse to approve building work on the ground that any building product, construction method, design, component or system connected with the building work is unsatisfactory if the building product, construction method, design, component or system complies with—an accreditation given by the Building Regulations Advisory Committee or a person or body referred to in?section 14(1), which is in force; or a certification or an approval given under any other accreditation system or process prescribed by the regulations, which is in force.Clause 50substitutes section 251(2A) of the Building Act. Section 251(2A) provides that an occupier of a building or land cannot recover from the owner of the building or land, or deduct from or set off against any rent due or to become due to the owner, any expenses incurred by the carrying out, in respect of an essential safety measure, of repairs or maintenance work or an installation referred to in section 41(2)(b)(ii) of the Retail Leases Act 2003, if the occupier has agreed to bear the expenses under a retail premises lease.Clause 50(1) applies these arrangements to an additional class of lease, being any other lease of a premises or an area in a retail shopping centre, not including a premises or an area in a retail shopping centre that is used, or is intended for use, as a residence. The term retail shopping centre is defined in section 251(7). Section 251(2A) will continue to apply to a retail premises lease to which the Retail Leases Act 2003 applies.Subclause (2) also substitutes section 251(6) to provide that section 251 applies despite any covenant or agreement to the contrary, other than an agreement about the cost of the carrying out, in respect of an essential safety measure, of repairs or maintenance work or an installation referred to in section 41(2)(b)(ii) of the Retail Leases Act 2003 under—a retail premises lease to which that Act applies; orany other lease of a premises or an area in a retail shopping centre other than a premises or an area in a retail shopping centre that is used, or is intended for use,?as a residence.Subclause (3) amends section 251(7) to substitute, in the definition of retail premises, "2003." with "2003;".Subclause (4) amends section 251(7) to insert a definition of retail shopping centre. This term is defined to have the same meaning as in the Retail Leases Act 2003.Clause 51inserts new section 261(1)(bb) into the Building Act, to provide that the Governor in Council may make regulations for or with respect to the accreditation of building products, construction methods, designs, components or systems connected with building work including, but not limited to—applications for those accreditations, the issuing of certificates of those accreditations and the renewal, variation and revocation of those accreditations; andthe keeping and maintaining of a register of those accreditations.Clause 52inserts new section 281 into the Building Act, to provide for transitional and saving provisions relating to the Building Amendment (Registration and Other Matters) Act 2021. Specifically, section 281(1) provides that on the substitution of section 251(2A) by section 50 of the proposed amending Act—a lease of the type described in section 251(2A)(b) is taken to include a lease of that type that was in force immediately before and on the commencement day; andthe rights of an occupier under section 251(2) that relate?to expenses incurred by the occupier under section 251(1) relating to the installation, repairs or maintenance work in respect of an essential safety measure before the commencement day are not affected by the occupier having agreed to bear those expenses under a lease referred to in paragraph (a).Section 281(2) provides for definitions, for the purposes of section 281, of amending Act and commencement day.Clause 53makes statute law revision amendments to sections 140(1), 182(5), 182E(1A), 205LC(2), 211(bb), 228B(3) and 234(2) of?the?Building Act to correct punctuation, numbering, cross references and other minor errors.Part 4—Repeal of this ActClause 54provides for the automatic repeal of this Act on 3 August 2023.The repeal of this Act does not affect the continuing operation of?the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ................
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