Building Amendment Bill 2012
I rise to make a contribution to the debate on the Building Amendment Bill 2012, and I indicate from the outset that the opposition does not oppose this bill. It is a relatively simple bill that seeks to address an anomaly that has arisen in relation to the practices of the Building Practitioners Board.
Members of the house would be well aware that the Building Practitioners Board is a statutory body that oversees the quality and standard of professional services in the Victorian building industry.
The Building Practitioners Board plays a crucial role because apart from the purchase of one’s property there is no larger expenditure that most people make than the engagement of builders to construct their property or undertake renovations and so forth. It is absolutely the most significant financial decision that individuals and families make, so it is important that there be in place an appropriate, robust regulatory framework to ensure that both building practitioners and consumers are properly protected. That has very much been the role of the Building Practitioners Board.
The reason for this particular amendment being introduced is that in 2001 the previous government passed an amendment to the Building Act 1993 that provided that the Building Practitioners Board had the power to inquire into the conduct of a person whose registration as a registered building practitioner had been suspended and that such an inquiry was limited to conduct that occurred during the three-year period immediately preceding the suspension.
That provision is contained in section 179A of the Building Act 1993.
We are dealing with this amendment today because it has arisen from an action that was taken in the Supreme Court. The case cited is Ariss v. Building Practitioners Board, which appeared before Justice Bell. It is most illuminating, and I recommend to members that they take the opportunity to read the decision of Justice Bell, who has outlined very clearly the reason he agreed with the applicant in the matter of Ariss v. Building Practitioners Board, which provides us now with the circumstance where we are seeking to amend the act to address the question that was afoot in the Supreme Court action.
Mr Stephen Ariss was a registered building practitioner, and the Building Practitioners Board commenced an inquiry into his building practices. Before it was completed, Mr Ariss’s registration was compulsorily suspended for his failure to pay a statutory fee of $90 per year to maintain his registration.
He maintained, according to Justice Bell, that the board thereby lost its jurisdiction to continue its inquiry. Obviously, as Justice Bell indicated, the board not surprisingly rejected that contention and decided that under the relevant legislation it retained jurisdiction because Mr Ariss was registered when the inquiry commenced. If its jurisdiction were lost, an unscrupulous builder could avoid scrutiny of its practices by orchestrating the suspension of its registration before the inquiry was completed. What is alleged is that there was an attempt by Mr Ariss to avoid the scrutiny of the Building Practitioners Board by ensuring that his registration was not valid and current, thereby in his view putting him in a position where the jurisdiction of the board was placed under question.
The decision of Justice Bell goes to a number of key points which are in effect addressed by this amendment. According to Justice Bell, under sections 177, 178 and 179 of the Building Act 1993, the provisions under which the board was operating, the board did not have jurisdiction to appoint someone to make a preliminary assessment, to conduct or continue an inquiry or to make disciplinary decisions with respect to a builder who was not a registered building practitioner. That category, as Justice Bell indicates, includes a builder whose registration was or became suspended. Justice Bell stated:
- In consequence, the board lost jurisdiction to continue an inquiry when the registration of a builder which was current when the inquiry commenced was compulsorily suspended for failing to pay the statutory fee, whether the suspension was ‘orchestrated’ or otherwise.
Justice Bell very clearly outlined why the board had no jurisdiction.
According to the account given by the board, it commenced an inquiry on 2 December 2009 into conduct alleged against Mr Ariss between October 2001 and August 2005, so there was quite a long gap between the alleged behaviour and the subsequent attempt by the board to initiate its inquiry — a gap of almost eight years from the first allegations against Mr Ariss and his behaviour through until August of 2005. As I indicated earlier, Mr Ariss, I suggest for reasons of seeking to avoid the scrutiny of the Building Practitioners Board, failed to ensure that his registration was intact.
Justice Bell went on:
- Under section 146(1)(a), the board’s decision to suspend Mr Ariss’s registration took effect on 12 January 2010, after —
this is crucial —
- the expiry of the appropriate prescribed appeal period of 60 days. When the board commenced the inquiry on 2 December 2009, the suspension decision had not taken effect and Mr Ariss was still a registered building practitioner. But after the suspension took effect on 12 January 2010, he was not.
The view of Justice Bell was that the decision made by the board was in excess of jurisdiction and was also an error of law on the face of the record. The decision was made on a misinterpretation of sections 175, 178 and 179 of the Building Act 1993.
Justice Bell went on to suggest that there were a range of remedies available to the government, including that the problem could be addressed by removing the incentive of builders to delay inquiries, that it could be achieved by making further amendments to the directions made in 2001 and that the time limit could be extended — and Justice Bell suggested that a period of five years from the date of the suspension for three years is not a long time in the building industry, especially taking into account the time needed to conduct an inquiry. Further, or alternatively, the time could be reckoned back from the date of the suspension or the date of the action under sections 177, 178 or 179 if action were also relevant in this context, whichever was the earliest.
What we have here is a sensible amendment. It seeks to remedy an anomaly which could not have been predicted when this bill was initially amended by the previous government in 2001.
I think it is clear that the behaviour of the applicant before the Supreme Court was a premeditated matter and that he had specifically, by his actions or in fact his omission to ensure that his registration was current, sought to avoid the scrutiny and the inquiry of the Building Practitioners Board. I think any fair-minded person who has had a look at this bill would say that that was certainly a consequence that could not have been predicted when we amended the bill in 2001. By closing this loophole pretty much in line with what was recommended by Justice Bell in his decision, we will prevent a situation where an Ariss matter could occur again — that is, where someone could capriciously and in a very calculated way seek to avoid the jurisdiction of the Building Practitioners Board.
The only other matter I want to briefly touch upon is that this bill allows the Building Practitioners Board to deal with registered building practitioners whose registration has been suspended, provided that the board’s inquiry commences within three years of the date of the suspension. We are certainly closing this loophole. I think these amendments address all of the relevant sections of the Building Act 1993, particularly sections 177, 178 and 179. I hope they will bring certainty to the building industry generally, but most particularly to consumers, because at the end of the day we have to have confidence that we have in place the right and appropriate regulatory environment, which obviously must protect the interests of consumers.
As I indicated at the start of my contribution, for many people engaging in the construction of a new home for themselves and their families or having renovations carried out on their home is the most important financial decision they will make in their lives, and they want to ensure that they are dealing with registered and legitimate practitioners who undertake their work in good faith. Unfortunately members all know from people who come to our electorate offices of circumstances involving unregistered builders — people who inappropriately call themselves registered builders and practitioners or architects. There are a range of people within the building profession who over time have sought to provide their services in, frankly, a less than professional way and who have brought great heartache to consumers, who often are young families who have battled to get into their first home. The unscrupulous way that some of these people have operated in the domestic building industry is quite reprehensible.
In closing this loophole we are seeking in a bipartisan way to address the question that arises out of the Ariss Supreme Court action, and we can be confident that that will provide some comfort and safety to consumers. For the tens of thousands of building practitioners and others across Victoria this legislation shines a light on the state’s desire to ensure that we have a strong regulatory environment and that we have in place the appropriate checks and balances to ensure that people who are seeking to inappropriately use their position, or by their actions to avoid the appropriate scrutiny of statutory authorities, cannot do so in the future.
I commend the bill to the house, and — perhaps inappropriately — I welcome to the advisers box the advisers who provided excellent advice to the opposition in relation to this bill. I thank them for it.