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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Building (Further Amendment) Act 1997
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purpose 1
2. Commencement 1
3. Principal Act 2
4. Definitions 2
5. New section 26 substituted 2
26. Prescribed places of public entertainment 2
6. Lodgement of documents relating to permits 3
7. Occupation to accord with permit 3
8. Temporary occupation of buildings 3
9. Lodgement of documents relating to permits 3
10. Expenses of adjoining owner 4
11. New section 160A inserted 4
160A. Application for determination in respect of building
design 4
12. Inquiry into conduct 5
13. Costs 5
14. New section 186A inserted 5
186A. Delegation 5
15. Building Practitioners Board procedure on inquiries 5
16. Powers of Commission as building surveyor 6
17. Building permit levy 6
18. Change of name 7
19. Application of Act to Crown 7
20. Repeal of section 218 8
21. Powers of compliance auditors 8
22. New Division 1A inserted in Part 13 8
Division 1A--Performance audits 8
227A. Performance auditors 8
227B. Functions of performance auditor 9
227C. Powers of performance auditors 9
227D. Building practitioner must give information to
performance auditor 10
23. Authorised persons 11
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Clause Page
24. New section 229 substituted 11
229. Power of entry--inspections of building or plumbing
work 11
25. New sections 231 to 232 substituted 12
231. Powers of entry--enforcement 12
231A. Occupier to be given copy of consent 12
231B. Search warrant 12
231C. Announcement before entry 14
231D. Copy of warrant to be given to occupier 14
231E. Powers of authorised persons on entry 15
231F. Powers of authorised person to require information or
documents 15
231G. Copying of documents 16
231H. Protection against self-incrimination 17
232. Entry in emergency 17
26. New section 234A inserted 17
234A. Confidentiality 17
27. Regulations 18
28. Amendment of Part 2 of Schedule 1 18
29. Statute law revision--Building Act 19
30. Amendment of Sale of Land Act 1962 19
31. Statute law revision--Building (Amendment) Act 1995 20
NOTES 21
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PARLIAMENT OF VICTORIA
A BILL
to further amend the Building Act 1993 and for other purposes.
Building (Further Amendment) Act
1997
The Parliament of Victoria enacts as follows:
1. Purpose
The main purpose of this Act is to further amend
the Building Act 1993 to improve the
administration and operation of that Act.
5 2. Commencement
(1) Section 1 and this section come into operation on
the day on which this Act receives the Royal
Assent.
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(2) Section 31 is deemed to have come into operation
on 31 October 1995.
(3) Subject to sub-section (4), the remaining
provisions of this Act come into operation on a
5 day or days to be proclaimed.
(4) If a provision referred to in sub-section (3) does
not come into operation before 1 July 1998, it
comes into operation on that day.
3. Principal Act
Act No.
10 In this Act the Building Act 1993 is called the
126/1993.
Principal Act.
Reprinted to
Act No.
93/1995.
Further
amended by
Acts Nos
2/1996 and
39/1996.
4. Definitions
In section 3(1) of the Principal Act insert--
' "Building Code of Australia" means the
15 Building Code of Australia 1996 published
by the Australian Building Codes Board--
(a) as amended or remade from time to
time; and
(b) as amended by the Victoria Appendix
20 1996 to that Code published by that
Board as that Appendix is amended or
remade from time to time;'.
5. New section 26 substituted
For section 26 of the Principal Act substitute--
25 "26. Prescribed places of public entertainment
An application for a building permit for a
place of public entertainment prescribed or
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Act No.
in a class prescribed for the purposes of this
section must be made to the Commission.".
6. Lodgement of documents relating to permits
(1) After section 30(1) of the Principal Act insert--
5 "(1A) In addition to the requirements of sub-
section (1), the relevant building surveyor,
within the relevant prescribed time, must
give to the relevant council a copy of any
other prescribed documents relating to the
10 application for the building permit or the
permit.
Penalty: 10 penalty units.".
(2) In section 30(2) of the Principal Act after "sub-
section (1)" insert "or (1A)".
15 7. Occupation to accord with permit
(1) In section 40 of the Principal Act for "A person"
substitute "(1) A person".
(2) At the end of section 40 of the Principal Act
insert--
20 "(2) Sub-section (1) does not apply to a person
who occupies a building in accordance with
an approval given under Division 3.".
8. Temporary occupation of buildings
In section 64(1) of the Principal Act for "Despite
25 anything to the contrary in section 40, a person"
substitute "A person".
9. Lodgement of documents relating to permits
(1) After section 73(1) of the Principal Act insert--
"(1A) In addition to the requirements of sub-
30 section (1), the relevant building surveyor,
within the relevant prescribed time, must
give to the relevant council a copy of any
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other prescribed documents relating to the
application for the occupancy permit or
temporary approval or the permit or
approval.
5 Penalty: 10 penalty units.".
(2) In section 73(2) of the Principal Act after "sub-
section (1)" insert "or (1A)".
10. Expenses of adjoining owner
In section 97(1) of the Principal Act before
10 "supervising" insert "assessing proposed
protection work and in".
11. New section 160A inserted
After section 160 of the Principal Act insert--
"160A. Application for determination in respect of
15 building design
(1) An application may be made to the Building
Appeals Board for a determination that a
particular design of a building or an element
of a building complies with this Act, the
20 building regulations or any document
applied, adopted or incorporated in the
building regulations.
(2) The application may be made by--
(a) the owner of the building or land; or
25 (b) the purchaser under a contract of sale of
a lot of a kind referred to in section
9AA(1) of the Sale of Land Act 1962;
or
(c) the relevant building surveyor; or
30 (d) the Commission.".
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12. Inquiry into conduct
In section 179(2)(d) of the Principal Act for "20
penalty units" substitute "50 penalty units".
13. Costs
5 In section 181 of the Principal Act for "must pay"
substitute "may pay".
14. New section 186A inserted
After section 186 of the Principal Act insert--
"186A. Delegation
10 The Building Practitioners Board may, by
instrument, delegate the Board's functions
under section 172(3) and (4) to the
chairperson or a member of the Board.".
15. Building Practitioners Board procedure on inquiries
15 For section 187(2) of the Principal Act
substitute--
"(2) Clause 8 of Schedule 3 applies to the
Building Practitioners Board--
(a) only in respect of its functions under
20 Division 2 of this Part; and
(b) as if that clause requires that one of the
members of the panel is to be the
member of the Board appointed in
respect of the category of registered
25 building practitioner to which the
person who is the subject of the Board's
inquiry belongs; and
(c) otherwise in the same way as it applies
to the Building Appeals Board.".
30
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16. Powers of Commission as building surveyor
In section 199(1)(a) of the Principal Act for
"referred" substitute "made".
17. Building permit levy
5 (1) In section 201(1A) of the Principal Act for
"$3000" substitute "$10 000".
(2) For section 201(7) of the Principal Act
substitute--
"(7) A relevant building surveyor must in
10 accordance with the regulations--
(a) keep records of--
(i) amounts received by the building
surveyor on account of the levy;
and
15 (ii) amounts of levy forwarded to the
Commission by the building
surveyor; and
(b) make those records available to be
inspected by or on behalf of the
20 Commission; and
(c) pay the amounts received by the
building surveyor into the Building
Administration Fund; and
(d) give to the Commission periodic
25 returns setting out--
(i) whether or not the building
surveyor has received an amount
of levy in the return period; and
(ii) if an amount has been received,
30 the amounts received and the
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amounts forwarded to the
Commission; and
(iii) any other prescribed information.
(7A) On the application of a relevant building
5 surveyor, the Commission may exempt the
building surveyor from the requirements of
sub-section (7)(d) for a specified period if
the Commission is satisfied that due to
illness or other reasonable cause the building
10 surveyor will not be in receipt of any amount
of levy during that period.
(7B) An application and an exemption under sub-
section (7A) must be in writing.".
18. Change of name
15 In sections 207(2)(e) and 210(2)(i) of the
Principal Act for "Building Owners and Managers
Association of Australia Limited Victoria
Division" substitute "Property Council of
Australia, Victoria Division".
20 19. Application of Act to Crown
(1) In section 217(1) of the Principal Act for "Parts 2,
7, 9, 10, 11 and 12A" substitute "Parts 2, 3, 4, 5,
7, 9 10, 11, and 12A and section 201".
(2) For section 217(2A) of the Principal Act
25 substitute--
"(2A) Despite anything to the contrary in this Act,
a provision of this Act applies to a lessee or
licensee of Crown land even if the provision
does not bind the Crown.".
30 (3) For section 217(5) of the Principal Act
substitute--
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"(5) Nothing in sub-sections (1) to (3) makes the
Crown liable to pay any fee or charge except
the building permit levy and the fees payable
under Part 10.".
5 20. Repeal of section 218
Section 218 of the Principal Act is repealed.
21. Powers of compliance auditors
(1) At the beginning of section 221ZZZA of the
Principal Act insert--
10 "(1) In carrying out his or her functions under this
Part, a compliance auditor may--
(a) enter any residence or the land on
which a residence is situated between
the hours of 8 am and 6 pm; and
15 (b) enter any other building or land at any
reasonable time.
(2) A compliance auditor must give the occupier
(if any) of a building or land not less than 24
hours notice, or such other notice as may be
20 agreed with the occupier, before the
compliance auditor enters the building or
land under sub-section (1).".
(2) In section 221ZZZA of the Principal Act before
"A compliance auditor" insert "(3)".
25 22. New Division 1A inserted in Part 13
After Division 1 of Part 13 of the Principal Act
insert--
"Division 1A--Performance audits
227A. Performance auditors
30 (1) The Commission may appoint performance
auditors for the purposes of this Division.
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(2) The Commission must give every person that
it appoints as a performance auditor an
identity card that displays a photograph of
the person and states the person's name and
5 the fact that he or she is authorised to
conduct performance audits for the
Commission.
(3) A performance auditor to whom an identity
card has been issued must when on duty
10 produce that card on demand.
Penalty: 1 penalty unit.
227B. Functions of performance auditor
(1) The function of a performance auditor is to
examine work carried out by registered
15 building practitioners--
(a) to ensure that the work has been
competently carried out and does not
pose any risk of injury or damage to
any person; and
20 (b) to ensure that this Act and the building
regulations have been complied with.
(2) The Commission is to determine in its
absolute discretion which work is to be
examined by a performance auditor.
25 227C. Powers of performance auditors
(1) In carrying out his or her functions under this
Division, a performance auditor may--
(a) enter any residence or the land on
which a residence is situated between
30 the hours of 8 am and 6 pm; and
(b) enter any other building or land at any
reasonable time.
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(2) A performance auditor must give the
occupier (if any) of a building or land not
less than 24 hours notice, or such other
notice as may be agreed with the occupier,
5 before the performance auditor enters the
building or land under sub-section (1).
(3) In carrying out his or her functions under this
Division, a performance auditor may--
(a) require a person who is, or was, a
10 registered building practitioner to
produce any document that relates to
any work that the auditor is examining;
and
(b) make copies of any document that
15 relates to any work that the auditor is
examining; and
(c) require a person who is, or was, a
registered building practitioner to
supply any other information or
20 document that relates to any work that
the auditor is examining; and
(d) report to the Commission, or a person
authorised by the Commission, the
results of any examination he or she
25 conducts.
227D. Building practitioner must give information
to performance auditor
(1) A person must comply with any requirement
made by a performance auditor under section
30 227C(3)(a) or (c).
Penalty: 50 penalty units.
(2) However, a person need not answer any
question put to him or her under section
227C(3)(c) if the answer might incriminate
35 him or her.".
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Building (Further Amendment) Act 1997
s. 23
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23. Authorised persons
(1) In section 228(2) of the Principal Act omit "of
entry".
(2) For section 228(3) of the Principal Act
5 substitute--
"(3) The person or body who or which authorises
a person under sub-section (2) must give an
identity card to that authorised person.
(4) The identity card must display a photograph
10 of the authorised person to whom it is issued
and state the person's name and the fact that
he or she is an authorised person.
(5) An authorised person to whom an identity
card has been issued must when on duty
15 produce that card on demand.
Penalty: 1 penalty unit.".
24. New section 229 substituted
For section 229 of the Principal Act substitute--
"229. Power of entry--inspections of building or
20 plumbing work
For the purpose of carrying out any
inspection of building work or plumbing
work authorised or required by this Act or
the regulations, an authorised person may--
25 (a) enter any residence or the land on
which a residence is situated between
the hours of 8 am and 6 pm; and
(b) enter any other building or land at any
reasonable time.".
30
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25. New sections 231 to 232 substituted
For sections 231 and 232 of the Principal Act
substitute--
"231. Powers of entry--enforcement
5 (1) If an authorised person has reasonable
grounds for suspecting that there is on any
building or land a particular thing that may
be evidence of the commission of an offence
against this Act or the regulations, the
10 authorised person, with any assistants the
authorised person considers necessary,
may--
(a) enter the building or land; and
(b) search for the thing.
15 (2) An authorised officer must not enter a
building or land under this section except--
(a) with the written consent of the occupier
of the building or land; or
(b) under the authority of a search warrant.
20 231A. Occupier to be given copy of consent
(1) An occupier who consents in writing to entry
and search of his or her building or land
under section 231 must be given a copy of
the signed consent immediately.
25 (2) If, in any proceeding, a written consent is not
produced to the court, it must be presumed,
until the contrary is proved, that the occupier
did not consent to the entry and search.
231B. Search warrant
30 (1) An authorised person may apply to a
magistrate for the issue of a search warrant
in relation to a particular building or land if
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s. 25
Act No.
the authorised officer believes on reasonable
grounds that there is, or may be within the
next 72 hours, on the building or land a
particular thing that may be evidence of the
5 commission of an offence against this Act or
the regulations.
(2) A magistrate may issue a search warrant
under this section if the magistrate is
satisfied by the evidence on oath, whether
10 oral or by affidavit, that there are reasonable
grounds for suspecting that there is, or may
be within the next 72 hours, on a building or
land a particular thing that may be evidence
of the commission of an offence against this
15 Act or the regulations.
(3) The search warrant may authorise an
authorised person named in the warrant and
any assistants the authorised person
considers necessary--
20 (a) to enter the building or land, or the part
of building or land, named or described
in the warrant; and
(b) to search for a thing named or
described in the warrant.
25 (4) In addition to any other requirement, a
search warrant issued under this section must
state--
(a) the offence suspected; and
(b) the building or land to be searched; and
30 (c) a description of the thing for which the
search is to be made; and
(d) any conditions to which the warrant is
subject; and
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(e) whether entry is authorised to be made
at any time or during stated hours; and
(f) a day, not later than 7 days after the
issue of the warrant, on which the
5 warrant ceases to have effect.
(5) A search warrant must be issued in
accordance with the Magistrates' Court Act
1989 and in the form prescribed under that
Act.
10 (6) The rules to be observed with respect to
search warrants mentioned in the
Magistrates' Court Act 1989 extend and
apply to warrants under this section.
231C. Announcement before entry
15 (1) Before executing a search warrant, the
authorised person named in the warrant or a
person assisting the authorised person must
announce that he or she is authorised by the
warrant to enter the building or land and give
20 any person at the building or land an
opportunity to allow entry to the building or
land.
(2) The authorised person or a person assisting
the authorised person need not comply with
25 sub-section (1) if he or she believes on
reasonable grounds that immediate entry to
the building or land is required to ensure--
(a) the safety of any person; or
(b) that the effective execution of the
30 search warrant is not frustrated.
231D. Copy of warrant to be given to occupier
If the occupier or another person who
apparently represents the occupier is present
at a building or land when a search warrant
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Building (Further Amendment) Act 1997
s. 25
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is being executed, the authorised person
must--
(a) identify himself or herself to that
person by producing his or her identity
5 card for inspection by that person; and
(b) give to that person a copy of the
execution copy of the warrant.
231E. Powers of authorised persons on entry
(1) An authorised person who exercises a power
10 of entry of a building or land under section
231 or 231B may if the thing searched for is
found during the search--
(a) inspect and take photographs (including
video recordings), or make sketches, of
15 the building or land or the thing; and
(b) inspect, and make copies of, or take
extracts from, the thing if it is a
document.
(2) An authorised person who exercises a power
20 of entry of a building or land under section
229 may inspect and take photographs
(including video recordings), or make
sketches of the building or land or the
building work or plumbing work concerned.
25 231F. Powers of authorised person to require
information or documents
(1) An authorised person who exercises a power
of entry of a building or land under this
Division may, to the extent that it is
30 reasonably necessary to determine
compliance with this Act or the regulations,
require a person at the building or land--
(a) to give information to the authorised
person; and
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s. 25
Act No.
(b) to produce documents to the authorised
person; and
(c) to give reasonable assistance to the
authorised person.
5 (2) An authorised person who has reasonable
grounds to believe that an offence has been
committed under this Act or the regulations
may, to the extent that it is reasonably
necessary to determine compliance with this
10 Act or the regulations, require a person--
(a) to give information to the authorised
person in relation to the carrying out of
building work or the work of a building
practitioner; and
15 (b) to produce documents to the authorised
person relating to building work or the
work of a building practitioner.
(3) A person must not refuse or fail, without
reasonable excuse, to comply with a
20 requirement made under sub-section (1) or
(2).
Penalty: 50 penalty units.
(4) A person must not--
(a) give information that the person knows
25 to be false or misleading in a material
particular; or
(b) produce a document that the person
knows to be false or misleading in a
material particular without indicating
30 the respect in which it is false or
misleading and, if practicable,
providing correct information.
Penalty: 50 penalty units.
231G. Copying of documents
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s. 26
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If a person produces a document to an
authorised person in accordance with a
requirement under section 231F, the
authorised person may make copies of, or
5 take extracts from, the document.
231H. Protection against self-incrimination
A person may refuse or fail to give
information, produce a document or do any
other thing that the person is required to do
10 by or under this Division if the giving of the
information, the production of the document
or the doing of that other thing would tend to
incriminate the person.
232. Entry in emergency
15 Despite sections 229, 231 and 231B, an
authorised person may enter a building or
land without a search warrant at any time if
the safety of the public or the occupants is at
risk or an emergency order under Part 8 or
20 an emergency plumbing order under section
221ZZF applies to the building or land.".
26. New section 234A inserted
After section 234 of the Principal Act insert--
"234A. Confidentiality
25 (1) An authorised person must not, except to the
extent necessary--
(a) to carry out functions or to exercise
powers under this Act or the
regulations; or
30 (b) in connection with the administration or
enforcement of this Act or the
regulations; or
(c) to give any information the authorised
person is authorised, permitted or
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Building (Further Amendment) Act 1997
s. 27
Act No.
required to give under this Act or any
other Act or the regulations under this
Act--
give to any other person, whether directly or
5 indirectly, any information gained in the
exercise of the powers as an authorised
person.
Penalty: 20 penalty units.
(2) Sub-section (1) does not prevent the giving
10 of information--
(a) for the purpose of any legal
proceedings arising out of this Act or
the regulations, or of any report of
those proceedings; or
15 (b) with the consent of the Minister.".
27. Regulations
In section 261(a) of the Principal Act after
"approvals" (where secondly occurring) insert
"and the matters to be complied with by the
20 relevant building surveyor before a permit or
approval can be issued".
28. Amendment of Part 2 of Schedule 1
(1) Clause 1 of Part 2 of Schedule 1 of the Principal
Act is repealed.
25 (2) In clause 3(1) of Part 2 of Schedule 1 of the
Principal Act for "section 6(2) of the Subordinate
Legislation Act 1962" substitute "section 23(2)
of the Subordinate Legislation Act 1994".
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(3) In clause 4 (1) of Part 2 of Schedule 1 of the
Principal Act for "Section 6(2) of the
Subordinate Legislation Act 1962" substitute
"Section 23(2) of the Subordinate Legislation
5 Act 1994".
(4) In clause 4(2) of Part 2 of Schedule 1 of the
Principal Act--
(a) for "Section 6A of the Subordinate
Legislation Act 1962" substitute "Section
10 24 of the Subordinate Legislation Act
1994"; and
(b) paragraph (a) is repealed.
29. Statute law revision--Building Act
In the Principal Act--
15 (a) in section 210(2)(h) for "by Housing"
substitute "by the Housing";
(b) in section 221N(1)(b)(i) for "section
221ZZU" substitute "section 221ZZZU";
(c) in section 221ZZZP(a) and (b) for
20 "registratration" substitute "registration";
(d) section 264 is repealed;
(e) Clause 11 of Schedule 4 of the Principal Act
is repealed;
(f) Schedule 5 is repealed.
25 30. Amendment of Sale of Land Act 1962
For section 32(1A) of the Sale of Land Act 1962
substitute--
"(1A) A vendor under a contract for the sale of
land on which there is a residence must give
30 to the purchaser before the purchaser signs
the contract, a statement signed by the
vendor giving particulars of--
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(a) any building permit under the Building
Act 1993 in the preceding 7 years in
relation to a building on the land; and
(b) in the case of a residence to which Part
5 2 of the House Contracts Guarantee
Act 1987 applies which was
constructed by an owner-builder within
the meaning of that Act within the
preceding 7 years, any guarantee under
10 that Act applying to that residence; and
(c) in the case of a residence to which
section 137B of the Building Act 1993
applies which was constructed within
the preceding 6 years and 6 months,
15 any required insurance under that Act
applying to that residence.".
31. Statute law revision--Building (Amendment) Act
1995
In section 8 of the Building (Amendment) Act
20 1995 for "insert" substitute "substitute".
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Building (Further Amendment) Act 1997
Notes
Act No.
NOTES
By Authority. Government Printer for the State of Victoria.
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