From 1 September 2016, the Building Practitioners Board was abolished and its powers and functions have now been absolved by the Victorian Building Authority (VBA).
The VBA now presides over all the disciplinary functions regarding building practitioner misconduct and the supervision and monitoring of registered building practitioners (practitioners) and their compliance with all relevant Acts of Parliament and building regulations.
A number of changes have also now come into effect, namely:
- there is an allowance for the VBA to immediately suspend a practitioner’s license
- there are changes to the process by which disciplinary action and other types of action can be taken against a practitioner by the VBA, inclusive of show cause notices and enforceable undertakings
- there are changes to the review processes that a practitioner can take when a VBA decision is made against a practitioner, including ‘internal review’ processes within the VBA.
Step one: Who and what can be reviewed?
The internal review process will only be available to affected persons on reviewable decisions. An affected person is a practitioner or another who is directly affected by the decision that has been made by the VBA.
Pursuant to section 184 of the Building Act 1993 (the Act) a reviewable decision is stated as including the following:
- a decision to give a registered building surveyor a direction under section 205M of the Act
- a decision to immediately suspend a practitioner’s license registration
- a decision to impose conditions on a practitioner’s license
- a decision to refuse a practitioner’s registration
- a decision by the VBA to take disciplinary action against a practitioner
- a decision to refuse to renew a practitioner’s registration
Step two: How do I apply for internal review?
After an affected person receives a reviewable decision from the VBA, the affected person is at liberty to apply for an internal review of the decision with the VBA without having to apply straight to the Victorian Civil and Administrative Tribunal (VCAT), unless the decision has been made by the Chief Commissioner or CEO of the VBA.
If the decision of the VBA has been made by the Chief Commissioner or CEO of the VBA, an internal review of the decision cannot be made and the matter can only be reviewed upon application to the VCAT.
To apply for an internal review of a decision, the affected person is to complete and submit a written application for internal review form with the VBA within 28 days after the day the affected person has been given notice of the decision.
Step three: What is the internal review process?
Unless the reviewable decision of the VBA was ‘immediate suspension,’ the decision is put on hold once the internal review process has begun.
Upon receipt of the application for internal review, the VBA will assess whether all the key criteria has been satisfied, including that the time frames for review have been complied with, that the applicant is an affected person, the decision is a reviewable one and that the decision for review was not made by the Chief Commissioner or CEO of the VBA.
Applications that have complied with the above will be referred for internal review to a senior member of the VBA that has had no previous involvement in the previous decision making process and is not of a less senior position than the original decision maker.
The reviewer will take into account when reviewing the decision all relevant material that was before the VBA at the time of the original decision and that has since become available for consideration.
Applicants are at liberty to submit further written or oral evidence in support of their application for internal review.
The reviewer will have 28 days to give a decision. However, this time frame may be extended by the VBA on the merits of a case and on account of the factual matrix and circumstances at hand.
Pursuant to section 185C of the Act, the reviewer may decide to:
- affirm the original decision of the VBA
- amend the original decision of the VBA
- substitute the original decision of the VBA for the reviewable decision
Step four: What is a review notice?
Section 185D of the Act states that as soon as practicable after the review decision is made, a review notice of the review decision must be given to the affected person.
The review notice must state the reason for the decision and that the affected person is at liberty to apply to VCAT for a review of the decision.
Further, if the review notice is not given by the VBA within the review period, the reviewer is taken to have made a review decision affirming the reviewable decision.
Section 185D(4) of the Act defines the ‘review period’ as being the longer of:
- the relevant period prescribed by the regulations (if any); or
- the period ending 28 days after the application is made.
Section 185(7) of the Act states that the decision of the VBA to suspend the practitioner’s registration will not be stayed pending the outcome of the internal review. Further, section 187(3) of the Act states that an application for review made with the VCAT does not stay the operation of a decision to immediately suspend registration.
Accordingly, if the practitioner has received a decision from the VBA immediately suspending his/her registration, neither the internal review process nor an application to the VCAT will stay the operation of that decision.
Application to the Victorian Civil and Administrative Tribunal
Section 186 of the Act states that a person who has applied for an internal review of a reviewable decision and is dissatisfied with the review decision may apply to VCAT for a review of that decision within 14 days after the end of the review period for internal review.
Where an affected person is not eligible to apply for an internal review of a reviewable decision, they may, as mentioned above, apply to VCAT within 28 days after the reviewable decision has been made.
An affected person can engage a legal representative to accompany them with giving any oral evidence should they chose to give evidence to the VBA in this manner. Alternatively, an affected person can elect to engage legal representation to assist them in drafting their written submissions to the VBA, as there is nothing in the Act to preclude parties from seeking legal counsel.
Affected parties are encouraged to seek legal advice from a building and construction lawyer well versed in the area to assist them with the internal review processes, particularly in circumstances where there been an order for immediate suspension of a practitioner’s registration or where oral or written submissions are given to the VBA.
A practitioner wanting to invoke the internal review process also needs to ensure that the decision is a reviewable one, that they are an affected person and that the strict time frames are complied with.