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Building and Other Legislation Amendment Bill 2008
Building and Other Legislation
Amendment Bill 2008
Explanatory Notes
Introduction
The purpose of the Building and Other Legislation Amendment Bill 2008
(the Bill) is to clarify existing provisions and to make minor amendments
to the Building Act 1975 (BA), the Fire and Rescue Service Act 1990
(FRSA), and the Local Government Act 1993 (LGA).
BA amendments are proposed concerning the maintenance of conditions of
use and occupation; to support enforcement powers regarding maintenance
of fire safety measures specified in building approvals; to address
ambiguity in the definition of budget accommodation buildings; to allow
minimum standards for temporary buildings, such as buildings used for
sleeping accommodation, to be introduced under the Act; and to remove
restrictions on the local governments in which building surveying
technicians can perform building certifying functions.
LGA amendments are proposed to clarify application of the Ombudsman
Act 2001 to local government owned corporations; resolve inconsistencies
between the LGA and the Commonwealth's Superannuation Industry
(Supervision) Regulations 1994 regarding local government employees 65
years and older; facilitate more timely adjustment of superannuation
contributions in line with changes in members' salaries; and clarify the
meaning of the Local Government Superannuation Scheme membership.
Short Title of the Bill
The short title of the Bill is the Building and Other Legislation Amendment
Act 2008.
Objectives of the Bill
The policy objective of the Bill is to clarify and make minor amendments
to provisions in a number of Acts relevant to building and local government
administrative matters, including:
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Building and Other Legislation Amendment Bill 2008
· amend the BA to:
· ensure alternative solutions used to comply with the building
code are properly specified and that their maintenance can be
adequately enforced;
· clarify the definition of `budget accommodation building' to
ensure that share-houses are captured by the definition and that a
boarding house is a `budget accommodation building'
irrespective of whether meals are provided to occupants or the
means by which occupants hold or derive their tenancy within the
premises or license to occupy their room or bed in the building;
· require temporary buildings or structures to comply with any
standard in force for temporary buildings or structures;
· remove the restrictions on the local governments in which
building surveying technicians can perform building certifying
functions; and
· update the BA to include the new parts of the Queensland
Development Code and renumbering of recently republished
parts of the Code; and
· make minor amendments to the FRSA to complement the
amendments to the BA with regard to the definition of fire safety
installations; and
· amend the LGA to:
· clarify the application of the Ombudsman Act 2001 to local
government owned corporations;
· make consistent local government superannuation provisions
with Commonwealth regulations and amend the membership
eligibility provisions in the LGA to the Local Government
Superannuation Scheme (the Scheme); and
· enable timely adjustment of superannuation contributions in line
with changes in members' salaries; and
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Building and Other Legislation Amendment Bill 2008
Policy rationale
Building Act 1975
Amendments to the BA are necessary to ensure that share-houses are
captured within the definition of a `budget accommodation building' and to
further clarify that the definition (in light of a recent Magistrate's Court
decision) was intended to apply to buildings configured to provide share
accommodation irrespective of the tenancy arrangements and whether
meals are provided to occupants.
Other amendments to the BA are necessary to ensure maintenance of
conditions of use and occupation and to support enforcement powers for
the duty to maintain fire safety measures specified by a building approval.
Amendments relating to the restrictions on the local governments in which
building surveying technicians can perform building certifying functions
are also proposed to address the critical shortage of building certifiers and
complement the proposed local government amalgamations in March 2008.
Temporary buildings used for sleeping accommodation are often
sub-standard and it is proposed that a minimum standard be introduced for
such buildings. Section 67 of the BA currently allows a building certifier to
approve a temporary building or structure for an unspecified (discretionary)
period that does not comply with the building assessment provisions
provided that certain conditions relating to structure, fire, health and
amenity are met. Amendments to the BA will provide that building
certifiers will not be able to apply section 67 of the BA when this standard
(i.e. a part of the Queensland Development Code) has been introduced by
regulation.
Local Government Act 1993
Amendments to the LGA are required to implement a recommendation of
the Queensland Ombudsman to amend section 728 of the LGA to ensure
that Local Government Owned Corporations prescribed under a regulation
do not have complete immunity from the jurisdiction of the Ombudsman.
A similar recommended amendment to the Government Owned
Corporations Act 1993 was made in March 2007.
Other amendments to the LGA are necessary to remove inconsistencies
between Queensland and Commonwealth superannuation provisions and to
update provisions in line with changes in superannuation practices
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Building and Other Legislation Amendment Bill 2008
requested by LG Super and supported by the Local Government
Association of Queensland.
How objectives are achieved
Passage of the Bill will achieve the State's policy objectives by amendment
of the relevant legislative provisions.
Alternative method of achieving the policy objectives
There are no other viable alternatives that would achieve the Government's
policy objectives.
Estimated cost for Government implementation
There are no additional anticipated financial costs for Government arising
from the amendments.
Consistency with Fundamental Legislative Principles
The Bill has been drafted with regard to fundamental legislative principles
as defined in section 4 of the Legislative Standards Act 1992.
Consultation
Consultation on the amendments has been undertaken with all relevant
Departments.
Consultation on the amendments to the BA has been undertaken with
industry stakeholders through the ``Building Industry Consultative Group".
The Local Government Association of Queensland has been consulted in
relation to amendments affecting the LGA. LG Super has been consulted
on amendments affecting superannuation provisions in the LGA. Both
bodies support the proposals contained in the Bill.
All stakeholders support the proposals contained in the Bill.
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Building and Other Legislation Amendment Bill 2008
Notes on Clauses
Part 1 Preliminary
Clause 1 states the short title as the Building and Other Legislation
Amendment Act 2008.
Part 2 Amendment of Building Act 1975
Clause 2 provides that the part and the schedule amend the Building Act
1975.
Clause 3 amends section 67 to provide for the introduction of minimum
standards for temporary buildings or structures through the building
assessment provisions such as the Queensland Development Code (QDC).
Where no such standards are in force the existing provisions of section 67
will apply.
Clause 4 amends section 103 to provide that if a development uses
alternative solutions, the `certificate of classification' must state the
materials, systems, methods of building, procedures, specifications and
other things required under the alternative solutions. This will provide
owners and occupiers with a concise and practical explanation of
alternative solutions that may have some operational implications which
owners and occupiers need to remain aware of, so that the alternative
solutions are observed and maintained. This will also ensure that the
ongoing use of the building and any future modifications do not
compromise compliance with the performance requirements of the
applicable building code.
When alternative solutions were introduced in the Building Code of
Australia 1996, no corresponding amendment was made to the BA or the
FRSA concerning the maintenance of alternative methods of complying
with fire safety requirements and associated conditions of use and
occupation. This created a gap in Queensland Fire and Rescue Service
(QFRS) enforcement powers for the duty to maintain fire safety measures
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Building and Other Legislation Amendment Bill 2008
specified by the building approval. Under the FRSA, building occupiers
are obliged to maintain fire safety installations prescribed under the BA to
a standard of safety and reliability.
The amendment to section 103 is complemented by the inclusion of a new
section 108A, section 114A and the definition of `fire safety installation'.
Amendments to the definition of `fire safety installation' and the required
information contained on a `certificate of classification' will enable QFRS
to monitor and enforce maintenance of performance measures. Also,
owners will be required to keep a copy of the certificate in the building to
ensure occupiers are aware of the building's compliance requirements.
This amendment complements the current section 114 which provides that
particular buildings must not be occupied or used without a certificate of
classification.
Clause 5 inserts a new section 108A that requires the display of the
`certificate of classification', for all buildings for which a `certificate of
classification' has been given, other than a class 1a building, in a
conspicuous place as near as practicable to the building's main entrance.
This section creates an obligation on the owner of buildings where a
`certificate of classification' has been given, the certificate was given on or
after 1 July 1997 and all or part of the building is occupied. The note to
the new section 108A clarifies that a `certificate of classification' is not
required to be given for a particular class 1a building (a single detached
class 1a building), or a class 10 building or structure. Other class 1a
buildings, for which a `certificate of classification' has been given, are not
required to display their `certificate of classification' under the new section
108A, due to their private, residential nature.
An authorised officer may require the owner of the building to produce the
certificate for inspection under subsection (3). The maximum penalty for
failing to comply with the direction is 165 penalty units. However, this is
not required under subsection (5) where the certificate is displayed
pursuant to subsection (2).
The intent of subsection (3) is that owners may not know about the
requirement and they may need to obtain a copy of the certificate. In this
case, the authorised officer (being either a fire service officer or an
authorised person under the LGA) can ask for it to be produced.
This section complements the amendments made to section 103, and the
amendment of the definition of `fire safety installation'. See the
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Building and Other Legislation Amendment Bill 2008
explanatory notes to the amended section 103 for an explanation of the
combined purpose of these amendments.
Clause 6 inserts a new section 114A to provide that if a `certificate of
classification' has been given for a building and the certificate contains a
restriction mentioned in section 103(d) or a requirement of a type
mentioned in section 103(e) then the owner of the building must, unless the
owner has a reasonable excuse, ensure the requirement or restriction is
complied with. Reasonable steps by the owner to comply with the
certificate's obligations would include ensuring occupancy and lease
arrangements accurately reflect any requirement or restriction, and a
reasonable level of monitoring of the occupier's activities, in relation to any
requirement or restriction.
The maximum penalty for not complying with this requirement is 165
penalty units.
This section complements the amendments made to section 103, the
insertion of a new section 108A and the amendment of the definition of
`fire safety installation'. See the note to the amendment of section 103 for
an explanation of the combined purpose of these amendments.
Clause 7 amends section 154(1) to omit "other than a designated local
government".
Clause 7 also omits section 154(2).
With the proposed local government boundary changes in March 2008,
some designated local governments will combine with non-designated
local governments, meaning that building surveying technicians would be
able to perform building certifying functions in some areas of the new local
governments, but not in others, if section 154 is not amended. This section
has also been amended to remove the restrictions on the local governments
in which local government building surveying technicians can perform
building certifying functions.
To fully achieve the desired policy objective section 282 has also been
omitted in clause 12.
Clause 8 amends section 185 to insert a new subsection (3). This provides
that section 185(2)(b) does not apply to:
(a) a building surveying technician employed as mentioned in section
154(a); or
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Building and Other Legislation Amendment Bill 2008
(b) a person who has applied to be licensed as a building surveying
technician and who will, if so licensed, be employed as mentioned in
section 154(a).
The amendments to 185 clarify that an accreditation standards body can
develop standards for building surveying technicians not currently covered
by the National Accreditation Framework for building certifiers.
Clause 9 amends the definition of budget accommodation building in
section 216.
In 2007, the Maroochydore Magistrates Court decided in favour of a
budget accommodation building owner by dismissing a complaint brought
by the QFRS. The magistrate decided the definition of a budget
accommodation building in the BA was too ambiguous on several points.
The owner argued that the accommodation provided was more akin to a
`share-house or beach house', not a `budget accommodation building'.
The Magistrate concluded more clarity on concepts such as `boarding
houses' was required before `share houses' were included.
Section 216 has been amended to better reflect the original intent of the
definition. Section 216 of the BA was intended to apply to buildings
configured to provide share accommodation irrespective of the tenancy
arrangements and the policy was never intended to require the provision of
daily food or meals.
Share houses with six persons or more cannot be considered to be friends
agreeing to pool resources and rent a house together. Rather, this situation
is a boarding house where the owner is deriving the economic benefits of
letting a boarding house.
Amendments to the definition of a `budget accommodation building' are
designed to ensure that particular share-houses are captured in the
definition of a `budget accommodation building' and to clarify that
boarding houses are `budget accommodation buildings' irrespective of
whether meals are provided to occupants or the means by which occupants
hold or derive their tenancy within the premises or license to occupy their
room or bed in the building.
Clause 10 amends section 217 to provide the new number for the relevant
part of the QDC. This is necessary with the recent renumbering of parts of
the QDC.
Clause 11 amends section 256 to complement the alternative authorised
officer arrangements specified in the new section 108A. The amendment of
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Building and Other Legislation Amendment Bill 2008
section 256 confirms that a fire service officer under the FRSA may act as
an authorised officer in relation to the enforcement of the requirements of
the new sections 108A and 114A and the prosecution of any offences
against the new sections 108A and 114A. Alternatively, an authorised
person under the LGA carrying out functions in relation to the BA may also
enforce the new sections 108A and 114A and prosecute any offences
against the new sections.
The new sections 108A and 114A relate to discrete fire safety issues
affecting the ongoing safe use of buildings and for this reason, these minor
amendments in relation to authorised officers have been made. As well as
an authorised person under the LGA, authorised officers under the FRSA
will also have authority to demand production of, and enforce compliance
with a particular building's certificate of classification.
Clause 12 omits section 282. The omission complements the amendments
to section 154. With the limitations on the use of building surveying
technicians removed by amendment to section 154, section 282 is no longer
required.
Clause 13 amends section 283(4) to insert an editor's note regarding the
amendment of the QDC, Part 25, from 1 September 2006 to 1 July 2007.
Further, it also notes that this part of the QDC was replaced and
renumbered as MP4.2 which took effect from 1 January 2008.
Clause 14 inserts a new chapter 11, part 6 to provide a transitional
provision for the new section 108A for a building given a `certificate of
classification' on or after 1 July 1997, but before the commencement of the
new section 108A. This provides that the commencement of the
requirement under the new section 108A for these buildings will not apply
until the first anniversary of the commencement of the section.
Clause 15 amends Schedule 1 to provide the new numbers for the relevant
parts of the QDC. This is necessary with the recent renumbering of parts of
the QDC.
Clause 16 amends schedule 2 (Dictionary) to amend the definition of `fire
safety installation' and to update the numbering in the definition of `QDC
boundary clearance and site cover provisions'. The updating of the
numbering is necessary following the recent renumbering of parts of the
QDC.
The amendment to the definition of `fire safety installation' and the
required information contained on a `certificate of classification' will
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Building and Other Legislation Amendment Bill 2008
enable authorised officers to effectively monitor building occupiers'
obligation to maintain performance measures.
Part 3 Amendment of Fire and Rescue
Service Act 1990
Clause 17 provides that Part 3 of the Act amends the Fire and Rescue
Service Act 1990.
Clause 18 amends section 58C by inserting the words `or the fire safety
systems for a building' after `in a building'.
Clause 19 amends the Dictionary by omitting `for Part 9A, division 3A'
from the definition of `fire safety system'. The omission of `for Part 9A,
division 3A' enables the definition of `fire safety system' in section 104KA,
to also apply to other parts of the FRSA. This complements clause 18
which adds a reference to `fire safety systems' to section 58C.
Part 4 Amendment of Local
Government Act 1993
Clause 20 provides that Part 4 of the Act and the schedule will amend the
LGA.
Clause 21 amends section 728 of the LGA by deleting the existing section
728(1)(a) and inserting new section 728(2) to provide that a Local
Government Owned Corporation (LGOC) prescribed under regulation is
not a public authority under the Ombudsman Act 2001.
These amendments will remove the total immunity of LGOCs from the
Ombudsman Act 2001 and will ensure that the Ombudsman can obtain
information relevant to an investigation into an agency without
compromising the competitive neutrality of LGOCs.
Clause 22 updates the definition of `scheme' . While the name used in the
definition has changed the scheme referred to is the same. (Also refer to
clause 23.)
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Building and Other Legislation Amendment Bill 2008
Clause 23 amends section 1180(1) to specify that the term `LG Super
scheme' refers to the Local Government Superannuation Scheme.
Clause 23 also amends 1180(2) by updating the reference to `scheme'
accordingly.
Clause 24 amends section 1181 of the LGA. The amendment introduces
provisions for eligibility to membership of the Local Government
Superannuation Scheme for classes of people that are currently provided
for in the Local Government Regulation 2005.
Clause 25 amends section 1182 of the LGA to make it consistent with the
provisions of Regulation 07.04 of the Commonwealth's Superannuation
Industry (Supervision) Regulations 1994 (the SIS Regulation). The
existing section 1182 obliges local governments to make superannuation
contributions on behalf of all permanent employees regardless of age or
weekly hours worked. The SIS Regulation, however, places restrictions on
contributions for certain employees aged over 65 years. The proposed
amendments have been drafted to remove inconsistencies with
Commonwealth law, while avoiding any further need to change the LGA
each time changes are made to the Commonwealth law.
Clause 26 amends section 1183(1) to establish consistency for section 1183
with the conditions imposed by Commonwealth law, by linking
obligations for contributions from employees to the provisions of new
section 1182.
The existing section 1183A of the LGA allows an employee to request that
a local government cease making superannuation contributions for the
employee, where benefits to the employee exceed the Reasonable Benefits
Limit (RBL) specified by section 140ZD of the Commonwealth's Income
Tax Assessment Act 1936.
As the RBL was abolished by the Commonwealth from 1 July 2007, clause
27 of the Bill omits section 1183A from the LGA.
Clause 28 amends section 1184(1) to update a reference to the `scheme' to
be a reference to the `LG Super scheme'. (Refer to clause 82.)
Clause 28 also inserts new subsection 1184(3) to ensure the section is
consistent with Commonwealth law.
Clause 29 amends section 1186 of the LGA to allow for continuous
reporting by local governments of changes in employee salaries. This will
enable timely adjustment of superannuation benefits for employees, in line
with salary changes.
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Building and Other Legislation Amendment Bill 2008
Section 1186 is also amended to reflect that the calculation of yearly
contributions payable for employees is now done by local governments and
not the Local Government Superannuation Board.
Schedule Minor amendments
Building Act 1975
The Schedule also includes minor amendments to the BA to correct minor
errors.
Local Government Act 1993
The Schedule also includes minor amendments to the LGA brought
forward by the Office of the Queensland Parliamentary Counsel to update
references to the LG Super scheme, introduce a definition for the
`Commonwealth Superannuation Act' in the Dictionary, and make other
minor technical amendments in line with contemporary drafting practices.
© State of Queensland 2008
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