Passage of parliament has been facilitated for changes to the Building Act 1993 against a backdrop of Victorian Auditor General and Ombudsman’s recommendations and findings. The new legislation took effect from the first of July 2013.
The major changes are as follows:
A Victorian Building Authority (VBA) replaces the Building Commission, which in one of its previous guises was called the Building Control Commission. The VBA also replaces and assumes the jurisdiction of the Plumbing Industry Commission, and a real game changer for the architectural fraternity is that architects will for the first time come under the jurisdiction of the metamorphosing Building Practitioners Board. This means that architectural misconduct, once the sole jurisprudential domain of the Architects Registration Board, will come within the “broad church” practitioner community of other construction professionals.
The Victorian Civil and Administrative Tribunal (VCAT) assumes the appellate jurisdiction of the Building Appeals Board (BAB), so that if a building practitioner wants to appeal an adverse finding, he or she will have to appeal to the VCAT.
This innovation follows the NSW system where appeals to do with adverse findings handed down by the NSW Building Professions Board are referred to the NSW Administrative Decisions Tribunal. This reform is indeed a good thing, because when it comes to occupational licensing and public protection, there will be many who will feel far more comfortable having judicially trained decision makers presiding over their vocational destiny.
However, if the ADT is any indicator, having appeared many times on behalf of practitioners in this NSW jurisdiction, I would predict that hearings will be attended by more formality and a rigour more akin to the courts. ADT determinations are often lengthy judgments with the accoutrements of poignant case law and precedents that shape the reasoning for the given finding. BAB decisions were noteworthy for their brevity, economy of language but not noteworthy for the citation of case law and precedent. Being a legal traditionalist, I personally prefer the lengthier and more judicially loquacious approach, particularly when it concerns matters of livelihood being weighed up with the public interest.
Anecdotally, however, the VCAT will appoint technically qualified referees to assist with decision making deliberations, which of course is a good thing. If this were to occur, it would be akin to the ADT practice where technically qualified members assist the judicial member with hearings.
Practitioners will be required to have obtained police checks as a precursor to registration, which again is prudent.
Possibly the biggest game changer is the new power whereby the BPB or its future incarnate will be able to issue rectification orders on builders. Procedurally, this will be fascinating and it will be interesting to find out what the avenues for appeals will be in circumstances where a respondent's view is at odds with the rectification imperative. There is little doubt that it is a potent power but may give rise to some interesting administrative law issues.
Planning Minister the Honourable Matthew Guy has also forecast that the Building Practitioners Board will be abolished and its powers will be assumed by the VBA in a forthcoming round of reforms.