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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.

Legal advice

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.

 
  • Im not sure what the answer will be to Lana,s question (above) but having an internal process on how the VBA deal with consumer complaints would have to be a great start to improving that regulators performance in the eyes of the public.

    Sure an internal review for the practitioner if the VBA issues a direction to them to save them a trip to VCAT but what of the consumer that is unhappy or unsatisfied with the VBA…….? What's theirs options currently?, a letter to the local member? legal redress? drop it and move on?
    I suggest that if the new regulations do not allow for the same internal process afforded to the practioner to apply to the consumer then it should.
    That internal review mechanism if adopted for complaints, the complaints handling process and of the outcomes from them, would in my opinion, be an invaluable tool to measure performance, outcomes and importantly consumer satisfaction in the way they are dealt with by this industry and the regulator charged with protecting them.

    there performance,
    Which by subject to inconstant decision making by what I see what can be put in place to scope for proactive strategic approaches

    • it works similarly to an appeals process in a court of law.

      In a court of law the defendant can lodge an appeal against the decision if they have been found guilty but the complainant is not allowed to demand a re-trial just because the defendant was found innocent.

      In the same manner, a complainant cannot demand a builder who is answering to a complaint be re-investigated over the same issue just because they are unhappy with the result. Perhaps if new facts of the matter arose the complainant could re-lodge, but not just because they don't like the outcome.

  • Great article Emily!

  • Under the old legislation the complainant ( who could have been an owner) also had a right to appeal the BPB decisions if the owner/ complainant lodged the complaint directly to the BPB.

    Does the owner/ a complainant ( who lodged the complaint to the VBA in relation to the registered practitioner) have a right under the new amended Act to appeal the VBA dictions and or to request the VBA internal review?

  • After spending over 2 years with a complaint which became and investigation which had 5 different so called VBA inspectors visit over 2 years I have absolutely no doubt these VBA clowns could not process their own oxygen.
    The VBA is over run with Planning ministry pen pushers & reject worksafe compliance officers. Add the current chair from the MBA and you have the perfect storm. All we needed was more ways to feed the legal eagles & get further away from practical regulations. This has been made complex by fools far removed from once a proud building industry. We had none of these issues pre 1997. You are one step from having a 3rd world building industry no one with any sense will touch. I love how they all rolled out in front of the cameras when an old pub got knocked. Reactive once again!!!!! But take the higher Ground- Tokenism & spin !!!!!!!!!!!

  • I think Peter's personal experience here sums it up perfectly. This 'normal' story of the VBA's investigation strategy, whereby most 'registered practitioner investigations' either end up going nowhere, or the few investigated appeal any 'penalty' – now as in the past internally or at VCAT – and then 99+% 'disappear'!. This' non-investigative'/protection policy ensures that the cowboys virtually always "get-out-of-trouble'.
    Then added to this, have a look at the personnel appointed to the VBA Board. As Peter points out, they are either past planning or building Ministers/bureaucrats, from insurance, or in the case of the Chief Commissioner, from the major industry association players who have directed Government policy and strategy for decades. This is a Board for Business Interests. It was/is the perfect storm, devised to ensure that all recalcitrant rogues are shielded from ever being penalized for outrageous conduct – therein lies the reasons for the 'no touch regulation', incorporating the 'no penalties' program. The other side of the coin is 'no protection' for consumers, workers or the community, and additionally a third world built environment which has delivered poor quality buildings that potentially expose all of us to hazards and serious harm.

  • Thanks Emily, you are really bringing those of us in the industry up to speed with the changes that were introduced to amend Victoria Building Law via the Building Legislation Amendment (Consumer Protection) Act 2016 (Vic). This article is a simple guide explaining what building practitioners in Victoria can do if they are review a decision of the VBA.

  • Have you guys not realised that none of the 'internal review' options are relevant to the consumer. They are all in place for the practitioner to review. The VBA is not allowed to look at itself when the consumer is involved. My name is Shannon Draper…..Google me and Simonds homes! My advice…if you ever have building issues….go to consumer affairs! The VBA have no idea how to handle the legalities of contracts and how they effect the 'legal' documentation. The benefit to consumer is the new link between CAV and VBA to minimise their failures relating to contracts…..

  • Note the language used in point 5. It does not cover a review of a decision of the VBA 'not' to take disciplinary action. It's a wolf in sheets clothing. The main thing a consumer would want reviewed, would be a decision by the VBA 'not to act' against a practitioner that they feel they have been wronged by. The sad thing is, that the act still give discretionary power to the VBA, resulting in them always having an excuse not to act. Other more established enforcement agencies (ie the Police) are obligated to prosecute offenders…..consider how the law deals with speeding…..we are caught….there is no discretion….we are fined a set amount depending on how excessive our offence was. I have advocated for a system that is the same for builders……prescribed penalties for wrong doing and offences against the act! Keep the discretion aligned with licensing and registration, using discretion when assessing a practitioners right to retain their registration and not using it when addressing breeches of the law……but what would I know…..I've only been in the trade for 30 years.

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