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This is a Bill, not an Act. For current law, see the Acts databases.
2020
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Building Quality Improvement)
Contents
Page
2020
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Building Quality Improvement)
Building and Construction Legislation Amendment Bill 2020
A Bill for
An Act to amend legislation about building and construction
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Building and Construction Legislation Amendment Act 2020
.
(1) The following provisions commence on the day after this Act’s notification day:
• sections 3 and 4
• part 3
• section 18.
Note The naming and commencement provisions automatically commence on
the notification day (see
, s 75 (1)).
(2) The remaining provisions commence on a day fixed by the Minister by written notice.
Note A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act
, s 77 (1)).
(3) If a provision of this Act has not commenced within 2 years beginning on this Act’s notification day, it automatically commences on the first day after that period.
(4) The
, section 79 (Automatic commencement of postponed law) does not apply to this Act.
This Act amends the following legislation:
•
•
•
.
4 Certificates of
occupancy
Section 69 (4), new note
insert
Note 2 Unless prescribed by regulation, the construction occupations registrar is not required to conduct a physical inspection of a building or a detailed audit of the approved plans or other submitted documents in deciding whether to issue a certificate of occupancy.
insert
Part 6A Residential building disputes
Division 6A.1 Objects and important concepts
127A Definitions—pt 6A
In this part:
building practitioner means an entity—
(a) that holds, or has held, a builders licence; or
(b) that is a party to a residential building work contract with obligations under the contract to—
(i) carry out, or arrange for someone else to carry out, residential building work; or
(ii) sell a residential building, or part of a residential building; or
(c) prescribed by regulation.
developer—see the Unit Titles Act 2001
, dictionary.
related building activity means work in relation to building 1 or more of the following structures in connection with a residential building:
(a) a driveway;
(b) external paving;
(c) a swimming pool;
(d) a structure prescribed by regulation.
residential building—see section 84.
residential building work—see section 84.
residential building work contract—see section 89B (1).
127B Meaning of residential building dispute—pt 6A
In this part:
residential building dispute means a dispute, about a residential building matter, between—
(a) a building owner; and
(b) either—
(i) a building practitioner; or
(ii) a developer.
127C Meaning of residential building matter—pt 6A
In this part:
residential building matter—
(a) means any matter in relation to—
(i) a residential building work contract; or
(ii) the carrying out of residential building work; or
(iii) the carrying out of a related building activity; and
(b) includes any of the following:
(i) breach of a warranty set out in division 6.2 (Statutory warranties);
(ii) contravention of section 42 (1) (a) to (d) (which are about requirements for carrying out building work);
(iii) failure to maintain the standard or quality of building work stated in a residential building work contract;
(iv) failure to complete the residential building work required under a residential building work contract in accordance with the terms of the contract;
(v) failure to pay for residential building work carried out under a residential building work contract;
(vi) a matter prescribed by regulation; but
(c) does not include a matter prescribed by regulation to not be a residential building matter.
127D Residential building dispute resolution process—purpose
(1) The purpose of a dispute resolution process under this part is to enable parties to a residential building dispute to do 1 or more of the following:
(a) resolve a residential building dispute;
(b) agree an amount to be paid to a party or the basis upon which an amount is payable to a party;
(c) if a residential building dispute is not resolved—narrow the matters in dispute and, as far as practicable, agree on the future progress of the dispute.
(2) Parties engaged in a dispute resolution process must make a genuine effort to resolve the dispute.
127E Prescription of dispute resolution processes
A regulation may prescribe the following:
(a) kinds of dispute resolution for residential building disputes, including requirements for a form of dispute resolution;
(b) a kind of dispute resolution that may or must be used for a residential building dispute about a particular residential building matter;
(c) particular residential building disputes that must not be resolved by a dispute resolution process under this part.
Division 6A.2 Residential building dispute administrator
127F Residential building dispute administrator—appointment
(1) The director-general may appoint a public servant as the Residential Building Dispute Administrator to oversee dispute resolution in relation to residential building disputes (the administrator).
Note 1 For the making of appointments (including acting appointments),
see the
, pt 19.3.
Note 2 In particular, a person may be appointed for a particular
provision of a law (see
, s 7 (3)) and an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act
, s 207).
(2) However, the director-general—
(a) may only appoint a person as administrator if satisfied that the person—
(i) is qualified in alternative dispute resolution and mediation; and
(ii) has an understanding of disputes in the building and construction industry; and
(iii) satisfies any requirement prescribed by regulation; but
(b) must not appoint a person as administrator if the person is appointed to a statutory office prescribed by regulation.
(3) The appointment must not be for longer than 5 years.
Note A person may be reappointed to a position if the person is eligible to be appointed to the position (see Legislation Act
, s 208 and dict, pt 1, def appoint).
127G Dispute resolution officers
(1) The administrator may appoint a public servant to be a dispute resolution officer for this Act.
Note 1 For the making of appointments (including acting appointments),
see the
, pt 19.3.
Note 2 In particular, an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act
, s 207).
(2) A person must not be appointed under this section unless the administrator is satisfied that the person is competent to exercise the functions of a dispute resolution officer under this Act.
(3) A regulation may prescribe matters that the administrator must consider in relation to a person’s competency for subsection (2).
(4) A dispute resolution officer has the functions of a dispute resolution officer under this Act and any other function given to the officer by the administrator.
(5) A dispute resolution officer must exercise the officer’s functions in accordance with—
(a) the instrument of appointment; and
(b) any directions the administrator gives the officer.
127H Technical building assessors
(1) The administrator may appoint a person to be a technical building assessor.
Note 1 For the making of appointments (including acting appointments),
see the
, pt 19.3.
Note 2 In particular, an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act
, s 207).
(2) A person must not be appointed under this section unless the administrator is satisfied that the person is competent to exercise the functions of a technical building assessor under this Act.
(3) A regulation may prescribe matters that the administrator must consider in relation to a person’s competency for subsection (2).
127I Consultants and contractors
(1) The administrator may engage consultants and contractors.
(2) However, the administrator must not enter into a contract of employment under this section.
127J Other arrangements for staff and facilities
The administrator may arrange with the head of service to use the services of a public servant or territory facilities.
Note The head of service may delegate powers in relation to the management of public servants to a public servant or another person (see Public Sector Management Act 1994
, s 18).
127K Delegation by administrator
The administrator may delegate the administrator’s functions under this Act or another territory law to a public servant.
Note For the making of delegations and the exercise of delegated
functions, see the
, pt 19.4.
127L Protection from liability
The administrator, dispute resolution officers and technical building assessors are not personally liable for anything done or omitted to be done honestly and without recklessness—
(a) in exercising a function under this Act; or
(b) in the reasonable belief that the act or omission was in the exercise of a function under this Act.
Division 6A.3 Dispute resolution process
127M Referral of dispute
(1) A residential building dispute may be referred to the administrator by—
(a) the Australian Capital Territory Construction Occupations Registrar
under the
, section 123 (1) (ba); or
(b) the Commissioner for Fair Trading under the Fair Trading (Australian Consumer Law) Act 1992
.
(2) The administrator may refuse a referral if satisfied, on reasonable grounds, that the dispute is more appropriately addressed by another entity.
127N Lodgment of dispute
(1) A party to a residential building dispute may, in writing, lodge a dispute with the administrator for resolution.
(2) The lodging party must—
(a) state their name and address; and
(b) identify each party to the dispute; and
(c) state each residential building matter in dispute; and
(d) include any information prescribed by regulation.
Example—par (b)
providing a business name and ABN or ACN number
Note 1 The
, s 170 deals with the application of the privilege against self-incrimination.
Note 2 It is an offence to make a false or misleading statement, give
false or misleading information or produce a false or misleading document (see
, pt 3.4).
(3) The administrator may ask the lodging party to give the administrator, within a stated reasonable time, information about any party to the dispute or a residential building matter in dispute that the administrator reasonably needs to understand the dispute.
(4) The administrator may accept a dispute as lodged even if the lodging party does not comply with subsection (2), if the administrator is satisfied it is reasonable in all the circumstances to do so.
127O Administrator may dismiss lodgement in certain circumstances
(1) The administrator may decide not to undertake dispute resolution in relation to a dispute referred to or lodged with the administrator if 1 or more of the following applies:
(a) the lodging party does not comply with a requirement in the request made under section 127N (3);
(b) the administrator is satisfied the lodging party failed, without reasonable excuse, to take reasonable steps to resolve the dispute before lodgement;
(c) the dispute relates to a security of payment dispute under the Building and Construction Industry (Security of Payment) Act 2009
;
(d) the dispute relates to a decision of an authorised insurer or fidelity fund manager under this Act;
(e) the administrator believes on reasonable grounds there is no reasonable likelihood of the dispute being settled by dispute resolution;
(f) the dispute is frivolous, vexatious, or was not made in good faith;
(g) the lodging party has, in writing, withdrawn the dispute;
(h) the dispute has been resolved.
(2) However, the administrator must dismiss a dispute if the dispute is a kind prescribed by regulation as a residential building dispute that must not be resolved by dispute resolution.
(3) If the administrator dismisses a dispute, the administrator must give the lodging party a statement of reasons for the decision.
Note For what must be included in a statement of reasons, see the Legislation Act
, s 179.
127P Administrator may refer dispute in certain circumstances
(1) The administrator may refer a residential building dispute to another entity if the administrator believes on reasonable grounds the dispute is more appropriately addressed by the other entity.
(2) However, the administrator may only refer a residential building dispute lodged with the administrator under section 127N with the written agreement of the party who lodged the dispute.
127Q Commencing dispute resolution
(1) This section applies to a residential building dispute if the administrator does not dismiss the dispute under section 127O or refer the dispute under section 127P.
(2) The administrator must decide—
(a) the kind of dispute resolution process to be undertaken; and
(b) the dispute resolution officer to conduct the dispute resolution process.
(3) The administrator must tell each party to the residential building dispute, in writing—
(a) the parties to the dispute; and
(b) the dispute resolution officer who will conduct the dispute resolution process; and
(c) the kind of dispute resolution process that will be undertaken; and
(d) the expectation on parties participating in that kind of dispute resolution process.
127R Information required for dispute resolution
(1) A dispute resolution officer may ask a party to a residential building dispute to give the officer, within a stated reasonable time, information about a residential building matter in dispute that the officer reasonably needs to conduct the dispute resolution process.
(2) The administrator may, in writing, direct a technical building assessor to determine 1 or more of the following in relation to the residential building dispute:
(a) if residential building work or a related building activity has been carried out;
(b) if residential building work or a related building activity is defective or incomplete;
(c) if residential building work or a related building activity satisfies the conditions set for payment of an amount under this Act or a residential building work contract;
(d) a matter prescribed by regulation.
(3) A technical building assessor must give a dispute resolution officer a report that details anything determined for subsection (2).
127S Record of resolution
(1) This section applies if a residential building dispute is resolved.
(2) The dispute resolution officer must prepare a written record of the resolution agreed by the parties setting out—
(a) the terms of agreement; and
(b) any action a party to the dispute has agreed to undertake and the time within which the action must be undertaken.
(3) The record of resolution is confirmed when each party to the residential building dispute and the administrator signs the record.
127T Dispute resolution—confidentiality
(1) A person exercising a function under this part and the parties to a residential building dispute must not disclose to anyone not involved in the dispute resolution process any information or document produced during the dispute resolution process unless—
(a) required by law to make the disclosure; or
(b) each party and the dispute resolution officer agree, in writing, to the disclosure.
(2) Any information disclosed to the administrator, a dispute resolution officer or a building dispute assessor by a party in private must be treated by the officer as confidential, unless the party making the disclosure expressly states otherwise.
Division 6A.4 Dispute resolution trust account
127U Dispute resolution trust establishment
The director-general may keep an account (a dispute resolution trust account) for this part.
127V Interest on amounts in trust account
(1) This section applies to interest from the investment of any amount paid to the credit of the dispute resolution trust account under this part.
(2) The director-general must pay the interest into the dispute resolution trust account.
(3) Interest paid into the dispute resolution trust account may be applied for the following purposes:
(a) providing dispute resolution services for residential building matter disputes;
(b) reimbursing the costs incurred by the administrator in instituting, defending or taking over proceedings in relation to residential building matter disputes;
(c) reimbursing the Territory the cost of administering this part;
(d) any other purpose prescribed by regulation.
insert
• statutory office-holder
insert
administrator—see section 127F (1).
building practitioner, for part 6A (Residential building disputes)—see section 127A.
developer, for part 6A (Residential building disputes)—see section 127A.
dispute resolution officer means a person appointed under section 127G to be a dispute resolution officer.
related building activity, for part 6A (Residential building disputes)—see section 127A.
8 Dictionary, definition of residential building
substitute
residential building—
(a) for part 6 (Residential buildings—statutory warranties, standard conditions, insurance and fidelity certificates)—see section 84; and
(b) for part 6A (Residential building disputes)—see section 127A.
insert
residential building dispute, for part 6A (Residential building disputes)—see section 127B.
residential building matter, for part 6A (Residential building disputes)—see section 127C.
10 Dictionary, definitions of residential building work and residential building work contract
substitute
residential building work—
(a) for part 6 (Residential buildings—statutory warranties, standard conditions, insurance and fidelity certificates)—see section 84; and
(b) for part 6A (Residential building disputes)—see section 127A.
residential building work contract—
(a) for division 6.2A (Standard conditions)—see section 89B; and
(b) for part 6A (Residential building disputes)—see section 127A.
11 Dictionary, new definition of technical building assessor
insert
technical building assessor means a person appointed under
section 127H to be a technical building assessor.
Part 3 Building (General) Regulation 2008
12 General requirements for application
for building approvals—Act, s 26 (3)
Section 11 (1)
(d)
omit
an alternative solution
substitute
a performance solution
omit
the alternative solution
substitute
the performance solution
14 Building erection and
alteration—Act, s 26 (3)
Section 12 (2) (b) note and (2) (e)
note
omit
an alternative solution
substitute
a performance solution
15 General requirements for
plans—Act, s 27 (1) (a)
Section 16 (2) (h)
omit
an alternative solution
substitute
a performance solution
omit
the alternative solution
substitute
the performance solution
17 Referral of building approval
applications to particular entities
Schedule 2, part 2.2, item 6,
column 2
omit
alternative building solution
substitute
performance solution
Part 4 Construction Occupations (Licensing) Act 2004
insert
104A Ministerial statement of expectations
(1) The Minister may—
(a) make a statement setting out the Minister’s expectations in relation to the registrar’s functions (a statement of expectations); and
(b) give the statement of expectations to the registrar.
(2) Before making a statement of expectations, the Minister must consult the registrar.
(3) The statement of expectations—
(a) may—
(i) relate to any function of the registrar; and
(ii) include any information the Minister believes will assist the registrar in responding to the statement of expectations; but
(b) must not include a direction about—
(i) the way in which a function is exercised; or
(ii) the exercise of a function in relation to an individual or class of person.
(4) A statement of expectations is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act
.
(5) The registrar must, within 6 sitting days after the reporting period, give a report to the Minister that details—
(a) any action taken by the registrar to respond to the statement of expectations in effect during the reporting year; and
(b) if no action, or only part action, was taken in response to the statement of expectations during the reporting year—reasons why no action, or only part action, was taken in response to the statement of expectations.
(6) In this section:
Minister means the Minister responsible for the regulatory
functions of the registrar (however described) under the administrative
arrangements under the
, section 13.
reporting period, for a statement of expectations, means the 12-month period after the day the Minister gives the registrar the statement of expectations.
19 Action after investigating
complaint
New section 123 (1) (ba)
insert
(ba) if satisfied that the subject of the complaint is a residential building dispute—refer the complaint to the residential building dispute administrator; or
substitute
(3) The registrar refers the complaint to an entity mentioned in subsection (1) (ba) or (c) by giving the entity—
(a) a copy of the complaint or summary of the information provided in the complaint; and
(b) any information relating to the complaint that the registrar considers may be helpful to the entity; and
(c) a statement about why the registrar considers that the entity is more appropriate to deal with the complaint than the registrar.
Note The registrar need not notify the complainant under subsection (1) if the complainant has withdrawn the complaint (see s 119).
(4) In this section:
residential building dispute—see the Building Act 2004
, section 127B.
residential building dispute administrator means the Residential Building Dispute Administrator appointed under the Building Act 2004
, section 127F.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 21 May 2020.
2 Notification
Notified under the
on 2020.
3 Republications of amended laws
For the latest republication of amended laws, see www.legislation.act.gov.au
.
© Australian Capital Territory 2020
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