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Building Amendment Bill 2005
Building Amendment Bill 2005
Explanatory Notes
General Outline
Objectives of the legislation
To clarify the existing definition of budget accommodation building (BAB)
to ensure that it is consistent with the original intention of Parliament.
Reasons for the Bill
Following the Palace Backpackers Hostel fire in Childers on 23 June 2000,
the Building and Other Legislation Amendment Act 2002 amended the
Building Act 1975 to require the upgrading in fire safety of budget
accommodation buildings (BABs) built prior to 1992. One of the
amendments was the insertion of a new definition of a BAB.
The definition is critical to the effective operation of the amendments. Only
buildings caught by the definition are required to undertake fire safety
upgrades.
Parliament's original intention was to exclude certain types of buildings
within the definition of a BAB. Legal advice indicates this intention has not
been clearly achieved as the definition of BAB has been credibly
interpreted to cover buildings meant to be excluded.
Ways in which the objects are to be achieved
The objective of the Bill is to be achieved by amending the existing
definition of budget accommodation building in s 12B of the Building Act
1975 to better reflect Parliament's original intention.
Why this way of achieving the objectives is reasonable and
appropriate
Interpretation and application of s 12B has caused uncertainty regarding
the scope of the definition of a BAB. An amendment to the Act to clarify
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Building Amendment Bill 2005
this definition is the most certain, clear and effective way of resolving these
issues.
Alternatives to the Bill
An amendment is the only method of restoring Parliament's original
intention.
Administrative cost to government of implementing the Bill
The amendments are minor clarifications. They will not involve any extra
administrative cost to government.
Consistency with fundamental legislative principles
There is consistency with one minor modification. The intent of the Bill is
to narrow the existing definition of those buildings intended to be captured
as a BAB. The Bill is predominantly consistent with this intent, however, as
a result of implementation, local governments and the QFRS have
identified an issue which has the potential to capture a small number of
additional buildings.
The existing definition requires buildings to have both shared bathroom
and sanitary facilities to be included as a BAB. However, some BAB
owners installed separate bathroom or sanitary facilities (ie they may have
installed either a toilet or handbasin in a bedroom). They were exploiting
an unforseen loophole, namely the requirement to have shared bathroom
and sanitary facilities, rather than just a shared bathroom or sanitary
facilities. It was always intended that these buildings would be captured.
Consultation
The following State agencies were consulted about the policy position
reflected in the Bill:
· Department of Housing
· Department of Premier and Cabinet
· Queensland Treasury
· Department of Tourism, Fair Trading and Wine Industry
Development
· Disability Services Queensland
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Building Amendment Bill 2005
· Department of Communities
· Department of Justice and Attorney-General
Explanation of purpose and intended operation of each clause
Short title
Clause 1 provides the short title of this piece of legislation, namely the
Building Amendment Act 2005.
Act amended
Clause 2 identifies which piece of legislation is being amended by this
amendment Act, namely the Building Act 1975.
Amendment of s 12B (Meaning of budget accommodation
building)
Clause 3 contains a replacement section (which contains amendments) to s
12B of the Building Act 1975. This is the only section of the Building Act
1975 being amended. Whilst this whole section has been replaced, there
are a limited number of provisions that have been amended.
Budget accommodation buildings (BABs) are generally those that provide
low budget accommodation to a range of people including tourists,
backpackers, itinerant workers, people on low incomes and those with
disabilities. This type of accommodation is typically rented on a "per bed"
basis and has shared facilities. This type of accommodation does not
involve the renting of self-contained accommodation. There are two other
features common to BABs: they have a higher density of occupation, and
they tend to be in older buildings.
Given the nature of occupation, building construction, building age and
lack of fire safety facilities, the risk of injury or loss of life from fire is a
high risk in a significant proportion of BABs.
Section 12B(1)(a) states that a BAB has shared facilities. The purpose of
the reference to shared facilities is to capture a central feature of BABs,
namely the existence of shared facilities. The existence of shared facilities
is usually associated with high occupant density. Commonly,
accommodation is available on a " per bed " basis rather than a "per room"
basis. The high occupant density means an increased risk for occupants in
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Building Amendment Bill 2005
the event of a fire, as it may take longer to evacuate all people from the
building.
The amendments clarify that occupants must have access to either a shared
bathroom or shared sanitary facilities. It is not necessary that occupants
have access to both shared bathroom and sanitary facilities.
This provision has also been amended to refer to "shared by all or any
occupants of the building". This was inserted to clarify that a building,
which contains both of the following, is a BAB:
(a) ensuite accommodation (where the occupants have exclusive
access to bathroom or sanitary facilities); and
(b) accommodation where guests share facilities (backpacker style).
Section 12B(1)(b) contains a list of types of accommodation that are
included in the definition of BAB. It also requires that accommodation
must be for 6 or more people. This refers to the number of people in the
building. There are no exclusions for family members or other types of
people being accommodated. All persons being accommodated are
counted.
Section 12B(1)(b)(i) has been amended to include guesthouses. This
category is intended to cover buildings that house people for short terms in
low budget accommodation and for people who pay for board or lodging
such as itinerant workers or other travellers. Hostels have been included as
a general category to refer to accommodation provided as a community
service (such as boarding houses run by the Salvation Army or other
charitable group). This category also includes buildings providing board or
lodging only during the day.
Section 12B(1)(b)(ii) has been amended to clarify that, as well as hotels,
bed and breakfast and farmstay accommodation are included in the
definition of BAB. Farmstay accommodation has been defined later in s
12B.
Section 12B(1)(b)(iii) refers to supported accommodation and has not been
amended.
Section 12B(2) contains a list of buildings which are excluded from the
definition of BAB. The list of exclusions has been increased to ensure that
Parliament's original intention is reflected in the legislation. The following
are types of buildings that are not BABs.
Single dwelling houses and sole occupancy units Section 12B(2)(a)
clarifies buildings used as dwelling houses (classified as Class 1a under the
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Building Amendment Bill 2005
Building Code of Australia - BCA) or sole occupancy units (classified as
Class 2 under the BCA) from the definition of BAB. The use of a building
will determine its classification by virtue of section 106 of the Standard
Building Regulation 1993.
Class 1a (BCA) buildings are conventional family residences and could
refer to a situation where one or two boarders live with the family. In
contrast, a family house with a larger number of boarders would be a Class
1b BCA or a Class 3 BCA (the number of boarders will dictate whether it is
a Class 1b BCA or a Class 3 BCA). Therefore the definition has been
changed to make it consistent with the terminology used by the BCA.
The Class 1a BCA exclusion would also apply to farmstay buildings that
are rented as a whole. In this situation, these buildings would be classified
and used as a Class 1a BCA and the exclusion would apply.
The Class 2 BCA exemption applies only whilst a building is used as a
Class 2 BCA building (i.e. single occupancy units). The exemption will not
apply where a building is used in such a way that it is no longer a Class 2
BCA building (by virtue of section 106 of the Standard Building
Regulation 1993). For example, a landlord may rent out a block of units on
a per bed basis, rather than renting out the units as a whole. In this
situation, it would be a BAB, when the landlord rents out this building (or
part of the building) on a per bed basis.
Hotels Section 12B(2)(b) excludes from the definition of a BAB, hotels
which do not provide accommodation to paying guests. For example, this
could apply to a hotel which is used to house a large family and no paying
guests. As soon as the owner of the hotel accepts any paying guest, and
provided the criteria in s12B(1) are met, the exclusion in s12B(2)(b) would
not apply.
Motels Section 12B(2)(c) excludes from the definition of a BAB, motels
in which guests may only let individual beds, rather than whole rooms. For
example, a motel would be a BAB if it contained bunk beds in a room that
were rented on a "per bed" basis, and the criteria in s12B(1) are met.
Buildings let as a whole Section 12B(2)(d) excludes buildings from the
definition of a BAB that provide accommodation where the guest may only
let the whole building.
This exemption refers to types of buildings such as cabins at caravan parks,
farmstays, holiday houses or campgrounds. If a guest is able to rent a bed
rather than the building at one of these establishments, the exception does
not apply. Provided the criteria specified in section 12B(1) were met, the
building would be a BAB.
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Building Amendment Bill 2005
Employer provided accommodation Section 12B(2)(e) excludes
accommodation provided by an employer from the definition of BAB.
More specifically, s 12B(e) excludes accommodation provided by an
employer to an employee as part of the package of employment. The
exclusion applies if the employer or the employer's spouse or relatives also
stay in the accommodation.
The types of situations this would cover include nurses' quarters, shearers'
accommodation and dongas for mine workers. However this exclusion does
not apply where accommodation is provided or arranged by an employer
for backpackers or fruit-pickers. Provided the criteria specified in s 12B (1)
are met, accommodation in a building provided by an employer to a fruit-
picker or a backpacker would be a BAB. The reason fruit picker and
backpacker accommodation has been excluded, is that in most instances,
the accommodation is the primary reason that individuals are staying in a
particular building, the employment part of the arrangement is incidental to
the accommodation. Whereas for nurses and the other type of workers, the
work is the primary part of the relationship and the accommodation
provided is incidental to the work.
The term "fruit pickers and backpackers" was deliberately used. It is broad
enough to include other types of workers such as vegetable pickers and
seasonal workers, as these types of workers will usually also be
backpackers.
Corrective services and juvenile detention facilities Section 12B(2)(f)
excludes accommodation in corrective services facilities or juvenile
detention centres from the definition of BAB. There is no change to this
provision, other than renumbering.
Aged care facilities Section 12B(2)(g) excludes accommodation in aged
care facilities. The only amendment to this provision is the reference to a
facility providing "residential care" rather than "aged care". This
terminology is consistent with the Aged Care Act 1997 (Cwlth).
Educational facilities Section 12B(2)(h) excludes from the definition of
BAB, accommodation located on, part of, or provided by, an educational
institution. Educational institution has been defined later in this section as
one of the following: a State school; a non-State school; a TAFE; or a
university. For example, accommodation provided in boarding schools or
university colleges is excluded from the definition of BAB. This exclusion
will apply to accommodation that is not necessarily on campus, but there
must be some link between the accommodation and the educational
institution. The exclusion will not apply to an independent operator who
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Building Amendment Bill 2005
happens to provide accommodation to students from a particular
educational institution.
Health care buildings Section 12B(2)(i) excludes health care buildings
(classified as Class 9a under the BCA) from the definition of BAB. There
are three types of health care buildings (a) hospitals, (b) nursing homes,
and (c) clinics and day surgeries. The meaning of "nursing home" has the
potential to overlap with supported accommodation (referred to in s12B
(1)(b)(iii)). The intention is that supported accommodation is a BAB and
that nursing homes are not BABs.
Supported accommodation is a service that provides accommodation (as a
person's main or principal place of residence) and also regularly provides a
resident with a personal care service. In contrast, nursing homes provide
both accommodation and attention to medical or health needs. In nursing
homes, the focus is not so much on the provision of accommodation, as the
provision of medical supervision. The provision of accommodation is a
critical, but merely incidental, part of this.
Therefore section 12B(2)(i) excludes all Class 9a buildings except where
the building is used primarily to provide accommodation (not
accommodation together with medical supervision) to persons with an
intellectual or physical disability. The effect of this is to exclude all health
care buildings from the definition of a BAB, unless they primarily provide
accommodation to persons with an intellectual or physical disability (i.e.
supported accommodation).
Women's refuges Section 12B(2)(j) excludes women's refuges or shelters
from the definition of BAB. This exclusion applies to any building that
contains a women's refuge or shelter, whether or not the building is shared
with other users.
Accommodation for lifesavers - Section 12B(2)(k) excludes from the
definition of BAB, a building in which lifesavers (eg a lifesaving club)
provides accommodation only to lifesavers. This is intended to cover the
types of buildings that provide accommodation to lifesavers whilst they are
on duty or for recreational purposes. If the building is used for
accommodation for other users, the exclusion would not apply.
Recreational camps for special groups Section 12B(2)(l) excludes from
the definition of BAB, buildings that are used for recreational camps for
special groups. These camp activities need to be recreational in purpose
and undertaken by groups.
The groups to which this provision applies, is limited by the types of
groups listed in the provision (namely, scouts, girl guides and school
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Building Amendment Bill 2005
groups). These special groups have been excluded partly because leaders
usually supervise them. In the event of an evacuation during a fire, the
members of the group will know one another and the leaders are more
likely to ensure that everyone escapes from the fire.
The exclusion will apply if there are two or more different groups staying
at the one time, however they must all fall into this type of group, i.e.
groups of scouts, school children or any other group. Thus, a building that
accommodates school groups and backpackers would not be excluded.
However, where these camps provide accommodation at any time to guests
who let individual beds, they would be included as a BAB.
Section 12B(3) contains definitions which are specific to section 12B.
Bathroom or sanitary facilities this provision states that that the definition
of bathroom or sanitary facilities relates to facilities that are either located
within the building or outside the building. This means that just because
accommodation has bathroom facilities such as an outhouse, it will not be
excluded from the definition a BAB.
Class 1a building this provision states that the definition of a Class 1a
(BCA) building that is to be used for the purposes of the definition of a
BAB, is the one that is current under the 2004 edition of the BCA.
Class 2 building - this provision states that the definition of a Class 2
(BCA) building that is to be used for the purposes of the definition of a
BAB, is the one that is current under the 2004 edition of the BCA.
Class 9a building - this provision states that the definition of a Class 9a
(BCA) building that is to be used for the purposes of the definition of a
BAB, is the one that is current under the 2004 edition of the BCA.
Educational institution Section 12B(3) defines an educational institution
to be one of the following: a State school, a non-State school, a TAFE, and
a university.
Farmstay Section 12B(3) defines a farmstay to mean accommodation
provided at a farm for paying guests. If a farm does not accommodate
paying guests it will not be included in this definition.
© State of Queensland 2005