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Cladding Safety Victoria Bill 2020
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1--Preliminary
Clause 1 states the purposes of the Bill, which are--
• to establish a body corporate called Cladding Safety
Victoria for the purposes of administering a cladding
rectification program, including the facilitation of
cladding rectification work for government buildings;
• to enable Cladding Safety Victoria to prioritise
buildings for potential financial assistance for cladding
rectification work and register owners and owners
corporations of those buildings;
• to enable Cladding Safety Victoria to determine the
amounts of financial assistance for cladding rectification
work and make payment for those amounts under
funding agreements;
• to allow Cladding Safety Victoria to provide guidance
to owners and owners corporations of buildings and
other persons and bodies in relation to cladding
rectification work in order to mitigate risk;
• to create sufficient regulation-making powers in relation
to the exercise of Cladding Safety Victoria's functions,
including the prioritisation of buildings and registration
of owners and owners corporations, payments to owners
and owners corporations and the entering into of
funding agreements;
591135 1 BILL LA INTRODUCTION 3/9/2020
• to amend the Building Act 1993--
• to transfer functions in relation to cladding
rectification work from the Victorian Building
Authority to Cladding Safety Victoria; and
• to require the Victorian Building Authority to
pay to Cladding Safety Victoria monies collected
relating to the building permit levy payable
under section 205G(2A) of that Act; and
• to amend the limitation period for specified
building actions relating to non-compliant or
non-conforming external wall cladding products;
and
• to provide for the subrogation of the Crown to
the rights and remedies of owners and owners
corporations of buildings to whom financial
assistance is given; and
• to amend the Public Administration Act 2004 to
confer the functions of a public service body Head on
the chairperson of Cladding Safety Victoria.
Clause 2 is the commencement provision. Subclause (1) provides that the
Bill is to come into operation on a day or days to be proclaimed.
Subclause (2) provides that any provision that has not come into
operation before 1 July 2021 will come into operation on that
day.
Clause 3 sets out the definitions for Authority, building practitioner,
building work, chairperson, chief executive officer, cladding
rectification work, council, CSV board, deputy chairperson,
government building, municipal building surveyor,
non-compliant or non-conforming external wall cladding
product, owner, owners corporation and public authority for the
purposes of the Bill.
Authority is defined to mean the Victorian Building Authority
established under section 193 of the Building Act 1993;
building practitioner is defined to have the same meaning as in
the Building Act 1993;
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building work is defined to have the same meaning as in the
Building Act 1993;
chairperson is defined to mean the member appointed as
chairperson of the CSV board under clause 11;
chief executive officer is defined to mean the person appointed
as chief executive officer of Cladding Safety Victoria under
clause 23;
cladding rectification work is defined to have the same meaning
as in the Building Act 1993;
council means a council within the meaning of the Local
Government Act 2020;
CSV board is defined to mean the Cladding Safety Victoria
board established under clause 10;
deputy chairperson is defined to mean the member appointed as
deputy chairperson of the CSV board under clause 11;
government building is defined to mean a building owned by the
Crown in the right of the State of Victoria or a public authority;
municipal building surveyor is defined to mean--
• a municipal building surveyor within the meaning of the
Building Act 1993; or
• the Authority, where--
• the Authority has been declared to have any of
the functions of a municipal building surveyor
under section 190 of the Building Act 1993 in
relation to a relevant building; or
• a council has entered into an agreement with the
Authority under section 214 of the Building
Act 1993 in respect of the carrying out by the
Authority of any of the functions of the
municipal building surveyor of the council in
relation to a relevant building;
non-compliant or non-conforming external wall cladding
product is defined to have the same meaning as in the Building
Act 1993;
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owner is defined to have the same meaning as in the Building
Act 1993;
owners corporation is defined to have the same meaning as in
the Owners Corporation Act 2006;
public authority is defined to mean a body established for a
public purpose by or under an Act but does not include a council.
Clause 4 provides for the application of the Bill to the Crown and public
authorities. The clause states that the Bill binds the Crown in
right of the State of Victoria, and as far as the legislative power
of Parliament permits, the Crown in all its other capacities; and
that the Bill applies to public authorities and to councils.
Part 2--Cladding Safety Victoria
Clause 5 provides for the establishment of Cladding Safety Victoria.
Subclause (2) provides that Cladding Safety Victoria is a body
corporate with perpetual succession, has an official seal, may sue
or be sued, is capable of acquiring, holding and disposing of real
and personal property, and is capable of doing or suffering
anything which by law a body corporate may do or suffer.
Subclause (3) requires that the official seal must be kept as
directed by Cladding Safety Victoria and must not be used except
as authorised by Cladding Safety Victoria.
Subclause (4) provides that all courts must take judicial notice of
the official seal on a document and, until the contrary is proved,
must presume that the document was properly sealed.
Clause 6 provides that the object of Cladding Safety Victoria is to support
Victorians to rectify non-compliant or non-conforming external
wall cladding products on buildings to improve the safety of
those buildings.
Clause 7 details the functions of Cladding Safety Victoria, the
requirements of Cladding Safety Victoria in carrying out its
functions, and provides that Cladding Safety Victoria may cease
to perform its functions with the approval of, or at the direction
of, the Minister.
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Subclause (1) details the functions of Cladding Safety Victoria,
which are--
• to administer a cladding rectification program,
including--
• prioritising buildings for potential financial
assistance for cladding rectification work and
registering owners and owners corporations of
those buildings;
• deciding whether to grant or refuse to grant
financial assistance to owners and owners
corporations of buildings;
• determining the amounts of financial assistance
for cladding rectification work and making
payment for those amounts under funding
agreements;
• monitoring cladding rectification work where
financial assistance has been given;
• supporting owners and owners corporations of
buildings by procuring building practitioners to
undertake cladding rectification work;
• supporting owners and owners corporations of
buildings by engaging technical design and
project management services for cladding
rectification work and providing other services
directed by the Minister relating to cladding
rectification work before and after funding
agreements are entered into; and
• facilitating cladding rectification work for
government buildings;
• to provide information, advice and support to owners
and owners corporations of buildings and other persons
and bodies in relation to cladding rectification work;
• to notify the appropriate regulators, municipal building
surveyors, persons and bodies about matters relating to
compliance and enforcement under this Bill, the
Building Act 1993 or any other Act;
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• to advise the Minister on the performance of its
functions under this Bill or any other Act, including a
right of subrogation conferred on the Crown under
section 137F of the Building Act 1993, and on any
other matters referred to it by the Minister; and
• to perform any other function conferred on Cladding
Safety Victoria by or under this Bill or any other Act,
including under any agreement to which the State is a
party.
Subclause (2) provides that in performing its functions, Cladding
Safety Victoria must engage with owners and owners
corporations of buildings and other affected persons and bodies,
and efficiently deal with any complaints relating to the
performance of its functions.
Subclause (3) enables Cladding Safety Victoria to cease to
perform any of its functions with the approval of, or at the
direction of, the Minister.
Subclause (4) provides that Cladding Safety Victoria has all the
powers necessary to achieve its object and perform its functions.
Clause 8 enables Cladding Safety Victoria to delegate by instrument any
of its functions, duties or powers to any person, except the power
to delegate and the power to appoint the chief executive officer.
Subclause (2) provides for sub-delegation, stating that a person to
whom a function, duty or power has been delegated under
subclause (1) may sub-delegate the function, duty or power to
another person if the instrument of delegation authorises its
sub-delegation.
Clause 9 provides that Cladding Safety Victoria represents the Crown in
performing its functions and duties and exercising its powers.
Clause 10 provides for the Cladding Safety Victoria board (CSV board) to
be the governing body for Cladding Safety Victoria.
Subclause (2) provides for the constitution of the CSV board,
requiring that the CSV board is to consist of not less than
3 members, but no more than 7 members, appointed by the
Minister under clause 11.
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Clause 11 provides for the appointment of CSV board members, including a
chairperson and deputy chairperson of the CSV board.
Subclause (1) requires the Minister to appoint members of the
CSV board, including a member to be the chairperson and a
member to be the deputy chairperson.
Subclause (2) provides that in appointing members of the CSV
board, including any acting members under clause 18, the
Minister must ensure that--
• at least one member has qualifications or experience in
building or construction; and
• each member has skills, knowledge or experience in
relation to at least one of the following--
• regulation of the building industry;
• public engagement and communications;
• risk management;
• public administration or governance;
• financial or program management;
• strategic planning;
• legal practice; and
• collectively, the members have skills, knowledge or
experience in relation to the matters listed in
paragraph (b)(i) to (vii) of the subclause.
Subclause (3) provides that a member of the CSV board holds
office for the period, not exceeding 3 years, specified in the
instrument of appointment. A member also holds office on the
terms and conditions, including remuneration, allowances and
payment of expenses, specified in the instrument of appointment.
Subclause (4) states that if a person ceases to be a member of the
CSV board under clause 13 before the end of the member's
period of appointment, the Minister may appoint a new member
to hold office for the remainder of the member's period of
appointment.
Subclause (5) provides that a member of the CSV board may
only be re-appointed once.
7
Clause 12 provides that the chairperson or the deputy chairperson of the
CSV board ceases to hold that office upon ceasing to be a
member of the CSV board under clause 13.
Clause 13 details when a CSV board member ceases to be a member.
The clause provides that a person ceases to be a member of the
CSV board if the person--
• becomes an insolvent under administration;
• is convicted or found guilty of an indictable offence, or
an offence that, if committed in Victoria, would be an
indictable offence;
• is removed from office under clause 14;
• retires or resigns under clause 15; or
• dies.
Clause 14 enables the Minister to remove a member of the CSV board from
office at any time if the member becomes incapable of
performing the duties of a member, is negligent in performing
those duties, engages in improper conduct, contravenes
clause 21(1) (requirement to disclose pecuniary interests and
conflicts of interest), is convicted or found guilty of an offence
under this Bill or any offence involving dishonesty, fraud, drug
trafficking or violence, or is no longer suitable to hold office as a
member for any other reason.
Clause 15 enables a member of the CSV board to resign by delivering a
signed letter of resignation to the Minister.
Clause 16 provides for when the deputy chairperson is required to act as the
chairperson of the CSV board.
Subclause (1) requires the deputy chairperson to act as
chairperson--
• during any period when the office of the chairperson is
vacant; or
• during any period when the chairperson is absent; or
• if the chairperson is unable, for any other reason, to
attend meetings of the CSV board or to perform the
duties of the chairperson.
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Subclause (2) provides that if the deputy chairperson is acting as
chairperson, the deputy chairperson may exercise all the powers
of the chairperson, must perform all the functions and duties of
the chairperson, and is entitled to receive the remuneration,
allowances and payment of expenses to which the chairperson
would have been entitled.
Clause 17 enables the Minister to appoint a CSV board member to act as the
deputy chairperson.
Subclause (1) provides that the Minister may appoint a CSV
board member to act as deputy chairperson in the following
circumstances--
• during any period when the office of the deputy
chairperson is vacant; or
• during any period when the deputy chairperson is
absent; or
• during any period when the deputy chairperson is acting
as chairperson under clause 16; or
• if the deputy chairperson is unable, for any other reason,
to attend meetings of the CSV board or to perform the
duties of the deputy chairperson.
Subclause (2) provides that if a member of the CSV board is
acting as deputy chairperson, the member may exercise all the
powers of the deputy chairperson, must perform all the functions
and duties of the deputy chairperson, and is entitled to receive the
remuneration, allowances and payment of expenses to which the
deputy chairperson would have been entitled.
Clause 18 enables the Minister to appoint a person to act as a CSV board
member.
Subclause (1) provides that the Minister may appoint a person to
act as a member of the CSV board for a period not exceeding
6 months. The Minister may appoint a person in the following
circumstances--
• during any period when there are fewer than the
maximum number of members permitted under
clause 10 (7 members); or
• during any period when a member is absent; or
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• during any period when a member is acting as deputy
chairperson; or
• if a member is unable, for any other reason, to attend
meetings of the CSV board or to perform the duties of a
member.
Subclause (2) provides that a person acting as a member of the
CSV board may exercise all the powers of a member of the CSV
board, must perform all the functions and duties of a member of
the CSV board, and is entitled to receive the remuneration,
allowances and payment of expenses to which a member would
have been entitled.
Clause 19 provides that an act or a decision of the CSV board is not invalid
merely because there are fewer than the maximum number of
members permitted under clause 10 (7 members), there is a
defect or irregularity in the appointment of a member or a
member contravenes clause 21(1) (requirement to disclose
pecuniary interests and conflicts of interest).
Clause 20 details the requirements for proceedings of the CSV board.
Subclause (1) provides that the meetings of the CSV board must
be held at the times and places determined by the CSV board.
Subclause (2) provides that a majority of the members of the
CSV board, of whom one member must be the chairperson or
deputy chairperson, constitutes a quorum of the CSV board.
Subclause (3) states that for the purposes of constituting a
quorum of the CSV board under subclause (2), if the chairperson
and deputy chairperson are unable to attend a meeting, the
members present at the meeting may elect a member, by a
majority of votes, to act as the chairperson for that meeting.
Subclause (4) provides for resolution of questions arising at a
meeting of the CSV board. The subclause requires questions to
be resolved by a majority of votes of all members present and
voting on the question, including the member chairing the
meeting. The subclause also provides that if there is no majority
due to an equal number of votes for and against a resolution, the
member chairing the meeting has a casting vote.
10
Subclause (5) enables a meeting of the CSV board to be held by
telephone, video conference or other means of communication
that do not require the physical presence of each member at the
same location.
Subclause (6) requires the member chairing a meeting to keep
minutes of the meeting.
Subclause (7) provides that subject to the Bill, the CSV board
may regulate its own proceedings.
Clause 21 details the requirements regarding pecuniary interests and
conflicts of interest of CSV board members.
Subclause (1) states that a member of the CSV board who has a
direct or indirect pecuniary interest or a conflict of interest in a
matter being considered or to be considered by the CSV board
must disclose the nature of that interest at a meeting of the CSV
board as soon as practicable after the member has knowledge of
the relevant facts. A contravention of this subclause will be an
offence with a maximum penalty of 60 penalty units.
Subclause (2) provides that for the purposes of disclosure under
subclause (1), a member does not have a pecuniary interest or a
conflict of interest in a matter merely because the member is
engaged in the building industry, or engaged in any matter
connected with the building industry.
Subclause (3) provides the circumstances where a member is
taken to have a pecuniary interest or a conflict of interest in a
matter relating to a building or building work for the purposes of
disclosure under subclause (1). This subclause does not limit the
circumstances where a member has a pecuniary interest or a
conflict of interest. The subclause provides that a member has a
pecuniary interest or a conflict of interest in a matter relating to a
building or building work if the member--
• is or was involved in designing that building;
• assisted in preparing or making an application for a
building permit or an occupancy permit under the
Building Act 1993 for that building or building work;
or
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• is or was the relevant building surveyor within the
meaning of the Building Act 1993 in respect of an
application for a permit for that building or building
work.
Subclause (4) requires a member of the CSV board who has
made a disclosure under subclause (1) to not be present during, or
otherwise take part in, any deliberation of or vote on that matter.
A contravention of this subclause will be an offence with a
maximum penalty of 60 penalty units.
Subclause (5) provides that if a member of the CSV board has
made a disclosure under subclause (1) the member chairing the
meeting must ensure that the disclosure is recorded in the
meeting minutes.
Clause 22 provides that a member of the CSV board is not personally
liable for an act or omission in the circumstances detailed in
subclause (1).
Subclause (1) provides that a member of the CSV board is not
personally liable for anything done or omitted to be done in good
faith in the exercise of a power or the discharge of a duty under
this Bill or the regulations, or in a reasonable belief that the act or
omission was in the exercise of a power or in the discharge of a
duty under this Bill or the regulations.
Subclause (2) provides that any liability resulting from an act or
omission that would but for subclause (1) attach to a member of
the CSV board attaches instead to Cladding Safety Victoria.
Clause 23 provides for the appointment of the chief executive officer of
Cladding Safety Victoria.
Subclause (1) enables the CSV board to appoint a person to be
the chief executive officer of Cladding Safety Victoria.
Subclause (2) provides that the chief executive officer is to be
employed under Part 3 of the Public Administration Act 2004.
Subclause (3) details the circumstances in which a person must
not be appointed as the chief executive officer. The subclause
provides that the CSV board must not appoint a person as chief
executive officer if, under the Building Act 1993, the person is a
Commissioner of the Victorian Building Authority Board, or the
person is a member of the Building Appeals Board, the Building
12
Regulations Advisory Committee or the Plumbing Advisory
Council.
Subclause (4) provides that the chief executive officer is
responsible to the CSV board for the day-to-day management of
Cladding Safety Victoria. The chief executive officer may attend
a meeting of the CSV board if invited by the CSV board, but
must not vote at the meeting.
Subclause (5) enables the CSV board to direct the chief executive
officer not to attend a meeting of the CSV board.
Clause 24 details the staff arrangements for Cladding Safety Victoria.
Subclause (1) provides for the employment of staff under Part 3
of the Public Administration Act 2004 to enable Cladding
Safety Victoria to perform its functions.
Subclause (2) enables Cladding Safety Victoria to enter into
agreements or arrangements for the use of the services of any
staff of a Department, statutory authority or other public body,
and to engage any persons as contractors or consultants, for the
purposes of performing its functions.
Clause 25 provides that Cladding Safety Victoria is subject to the general
direction and control of the Minister. Subclause (2) requires
Cladding Safety Victoria to comply with any direction of the
Minister, including a direction to give any information or
assistance the Minister requires.
Clause 26 details the requirements regarding complaints made to Cladding
Safety Victoria.
Subclause (1) enables any person to complain in writing to
Cladding Safety Victoria about the performance of Cladding
Safety Victoria's functions or duties or the exercise of its powers
under this Bill or any other Act.
Subclause (2) provides that if Cladding Safety Victoria receives a
complaint, it must consider the complaint and give a written
report to the complainant of its consideration of the complaint.
Subclause (3) requires Cladding Safety Victoria to consider any
complaints in accordance with the process prescribed under the
regulations.
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Part 3--Financial assistance for cladding rectification work
Clause 27 provides for notification from a municipal building surveyor of
buildings requiring cladding rectification work.
Subclause (1) enables a municipal building surveyor to notify
Cladding Safety Victoria of a building that the municipal
building surveyor considers requires cladding rectification work.
The building must not be a government building. Part 3 is not
intended to apply to government buildings, therefore a municipal
building surveyor does not need to notify Cladding Safety
Victoria of government buildings and the prioritisation process
under that Part will not apply to government buildings. Cladding
Safety Victoria facilitates the rectification of government
buildings in accordance with government policy.
Subclause (2) provides that if a municipal building surveyor
notifies Cladding Safety Victoria of a building under subclause
(1), the municipal building surveyor must include in the
notification any information that supports their opinion that a
building requires cladding rectification work.
Subclause (3) enables Cladding Safety Victoria to request the
municipal building surveyor to provide any further information
that is reasonably necessary.
Subclause (4) provides that a notification under subclause (1)
must be in the prescribed form.
Clause 28 requires Cladding Safety Victoria to prioritise buildings in
respect of which it has been notified for potential financial
assistance for cladding rectification work. This prioritisation
process will assist Cladding Safety Victoria to determine the
order in which buildings that require cladding rectification work
will be assessed for funding and progressed.
Subclause (1) requires Cladding Safety Victoria to prioritise for
potential financial assistance any buildings in respect of which it
has been notified by a municipal building surveyor under
clause 27 as requiring cladding rectification work.
Subclause (2) requires that when prioritising a building for
potential financial assistance, Cladding Safety Victoria must have
regard to the criteria prescribed in the regulations.
14
Subclause (3) provides that Cladding Safety Victoria must
prioritise a building for potential financial assistance for cladding
rectification work in accordance with any other requirements
prescribed in the regulations.
Clause 29 provides the process for Cladding Safety Victoria to register
owners and owners corporations of buildings for potential
financial assistance for cladding rectification work.
Subclause (1) enables Cladding Safety Victoria to invite the
owner or owners corporation of a building that has been
prioritised under clause 28 to apply to register for potential
financial assistance for cladding rectification work. The
invitation must be in writing.
Subclause (2) provides that after considering the application,
Cladding Safety Victoria may accept or refuse to accept the
application.
Subclause (3) provides that when deciding whether to accept or
refuse to accept the application under subclause (2), Cladding
Safety Victoria must consider the matters prescribed in the
regulations.
Subclause (4) enables Cladding Safety Victoria to request any
information from an applicant that it considers necessary to assist
in deciding whether to accept an application to register.
Subclause (5) requires an applicant that has been requested to
provide information under subclause (4) to take reasonable steps
to provide the information requested.
Subclause (6) enables Cladding Safety Victoria to refuse to
accept an application if the applicant does not provide any further
information required under subclause (4).
Subclause (7) requires that within 14 days of making a decision
to accept or refuse to accept an application to register for
potential financial assistance, Cladding Safety Victoria must
notify the applicant whether the application is accepted or
refused.
Subclause (8) provides that if Cladding Safety Victoria refuses to
accept an application, it must include reasons for the decision in
the notice under subclause (7).
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Subclause (9) provides that an application to register an owner or
owners corporation of a building for potential financial assistance
must be made--
• in the prescribed form and include the prescribed
information; and
• in accordance with any other prescribed requirements.
Clause 30 sets out the requirements for granting financial assistance to
owners and owners corporation of buildings for cladding
rectification work.
Subclause (1) requires that on accepting an application to register
for potential financial assistance, Cladding Safety Victoria must
decide whether to grant or refuse to grant financial assistance to
the owner or owners corporation of the building.
Subclause (2) states that, subject to this clause, Cladding Safety
Victoria must make a decision to grant or refuse to grant financial
assistance in accordance with any process prescribed in the
regulations.
Subclause (3) provides that in deciding whether to grant or refuse
to grant financial assistance, Cladding Safety Victoria may assess
the building to determine the extent of the cladding rectification
work required to mitigate the risks associated with any
non-compliant or non-conforming external wall cladding product.
Subclause (4) enables Cladding Safety Victoria to request any
information from an applicant that it considers necessary to assist
in deciding whether to grant financial assistance.
Subclause (5) requires that within 14 days of making a decision
on whether financial assistance is granted or refused, Cladding
Safety Victoria must notify the applicant whether the financial
assistance is granted or refused.
Subclause (6) provides that if Cladding Safety Victoria refuses to
grant financial assistance, Cladding Safety Victoria must include
reasons for the decision in the notice under subclause (5).
Subclause (7) requires that after making a decision to grant
financial assistance under this clause, Cladding Safety Victoria
must enter into a funding agreement with the owner or owners
corporation of the building.
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Subclause (8) provides that the funding agreement must be in the
form prescribed in the regulations and contain the terms and
conditions prescribed in the regulations.
Clause 31 requires Cladding Safety Victoria to notify the Minister, the
Authority, the municipal building surveyor for the municipal
district in which the building is located and any prescribed
agency of the completion of any cladding rectification work in
respect of a building under a funding agreement.
Part 4--Reporting and financial provisions
Clause 32 provides for the development of a strategic plan for approval by
the Minister.
Subclause (1) provides that, within 3 months of the
commencement of the Bill, the CSV board must prepare a
four-year strategic plan and submit that plan to the Minister for
approval.
Subclause (2) sets out what the strategic plan prepared under this
clause must contain, including a vision statement, a mission
statement, a statement of values, the objectives that are to be met
during the course of the plan and details of the strategic
initiatives that will enable these objectives to be met.
Subclause (3) provides that the CSV board must adopt and
implement any strategic plan that is prepared and approved by
the Minister under this clause, and that the Minister must provide
a copy of the plan to the Treasurer.
Clause 33 provides for the development of an annual work program for
approval by the Minister.
Subclause (1) provides that the CSV board must, no later than
30 June each year, prepare a work program for the next financial
year, which must be submitted to the Minister for approval.
Subclause (2) provides that an approved work program must
include the objectives that are to be met during the next financial
year and details of the actions which Cladding Safety Victoria
will take during the next financial year to meet those objectives.
Subclause (3) provides that, if a work program prepared under
subclause (1) has been approved by the Minister, the CSV board
must adopt and implement the program and ensure that a copy of
17
the program is published on a website maintained by Cladding
Safety Victoria.
Subclause (4) provides that, for the financial year commencing
1 July 2020, the CSV board must carry out the duties specified in
subclause (1) within 3 months of the commencement of the Bill.
Clause 34 provides that, if the CSV board fails to act consistently with the
strategic plan or annual work program that has been approved by
the Minister, the Minister may direct the CSV board to take steps
to act consistently with the strategic plan or the work program, or
direct the CSV board to amend the strategic plan or the work
program, as the case requires. The clause also provides the
Minister with the discretion to give any other direction as the
Minister considers appropriate in relation to this clause.
Clause 35 provides for the information that must be included in Cladding
Safety Victoria's report of its operations under Part 7 of the
Financial Management Act 1994. This includes details of
funding agreements entered into during the financial year, details
of cladding rectification work funded during the financial year,
details of funded cladding rectification work completed during
that financial year, and any other information that is required by
the Minster in writing at least 30 days before the end of the
financial year.
Subclause (2) provides that the information provided under
subclause (1) must not include any information that would
identify the location of any building that is the subject of
cladding rectification work.
Clause 36 sets out the records that Cladding Safety Victoria must keep up to
date in order to ensure transparency and accountability.
Subclause (1) requires Cladding Safety Victoria to keep up to
date records of--
• notifications by municipal building surveyors under
clause 27 of buildings requiring cladding rectification
work, including any supporting information;
• decisions made under clause 28 to prioritise buildings
for potential financial assistance for cladding
rectification work;
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• decisions made under clause 29 to accept or refuse to
accept applications to register owners and owners
corporations of buildings for potential financial
assistance;
• the owners, owners corporations and buildings in
respect of which applications to register for potential
assistance have been accepted;
• the activities undertaken by Cladding Safety Victoria in
considering decisions to prioritise buildings for potential
financial assistance and applications to register owners
and owners corporations for potential financial
assistance;
• decisions made under clause 30 to grant financial
assistance for cladding rectification work and their
corresponding funding agreements;
• any complaints that have been made under clause 26
and their corresponding written reports.
Subclause (2) provides that these records must be kept in
accordance with the prescribed requirements.
Clause 37 enables Cladding Safety Victoria to enter into information
sharing agreements with the persons or bodies listed in subclause
(1) for the purposes of performing the functions of Cladding
Safety Victoria or the person or body under this Bill or any other
Act. This will ensure Cladding Safety Victoria is able to obtain
the information that is needed to effectively discharge its
functions, and to support other parties to information sharing
agreements to meet broader health, safety and public interest
objectives. The persons or bodies listed include--
• a Department or public entity within the meaning of the
Public Administration Act 2004;
• the Victorian Building Authority;
• Consumer Affairs Victoria;
• the Environment Protection Authority;
• the Country Fire Authority;
• Fire Rescue Victoria;
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• a municipal building surveyor; and
• any other person or body that exercises functions in the
public interest that involve protecting the interests of the
public.
Subclause (2) provides that information sharing agreements may
extend to information that would be reasonably required by either
party to the agreement to assist in the exercise of functions under
the Bill or the functions of the other party.
Clause 38 places important limits on how information is used, providing
that a person must not improperly use any information to obtain,
directly or indirectly, any pecuniary or other advantage for that
person or another person, if the information was acquired in the
course of that person's duties or former duties as a member of the
CSV board, the chief executive officer or a person referred to in
clause 24 (staff). This clause acknowledges the sensitive
information that is held by Cladding Safety Victoria, and that
significant consequences and impacts can result from the
improper use of this information. A contravention of this clause
will be an offence with a maximum penalty of 60 penalty units.
Clause 39 provides that a person who, in the course of performing functions
or duties or exercising powers under this Bill, receives
information that would identify the location of any buildings
affected by non-compliant or non-conforming external wall
cladding products must not disclosure the information. A
contravention of this clause will be an offence with a maximum
penalty of 60 penalty units.
Subclause (2) provides that the prohibition does not apply if the
disclosure of information was in relation to--
• information shared in accordance with an information
sharing agreement under clause 37;
• a record or disclosure made with written authorisation
of Cladding Safety Victoria or the Minister;
• a record or disclosure made to a regulator;
• any other disclosure of information to the extent
necessary in the performance of Cladding Safety
Victoria's functions under this Bill; or
• a disclosure required or permitted under another Act.
20
Clause 40 enables Cladding Safety Victoria to invest any monies not
immediately required for the purposes of performing its functions
in any manner approved by the Treasurer.
Clause 41 provides that Cladding Safety Victoria may enter into
arrangements or agreements with any person or body to act as its
agent in the carrying out of its functions under the Financial
Management Act 1994 or otherwise in relation to required
accounting activities.
Clause 42 to support Cladding Safety Victoria to carry out its functions and
administer the cladding rectification program, subclause (1)
provides that the Authority must pay out of the Cladding Safety
Victoria account under section 205DB(1)(e) of the Building
Act 1993 to Cladding Safety Victoria, for the purposes of this
Bill, any amount remaining in that account after the payments
specified in section 205DB(1)(b), (c) and (2) of the Building
Act 1993 have been made.
Subclause (2) provides that, if the Treasurer is satisfied that there
is at any time an amount in excess of the amount required to meet
the anticipated costs to Cladding Safety Victoria in performing its
functions, the Treasurer, after consultation with the Minister and
Cladding Safety Victoria, may direct the payment of the whole or
any part of that excess amount out of the account into the
Consolidated Fund.
Subclause (3) requires Cladding Safety Victoria to comply with a
direction made by the Treasurer under subclause (2).
Part 5--General
Clause 43 empowers the Governor in Council to make regulations for or
with respect to--
• the administration of the cladding rectification program;
• the prioritisation of buildings for potential financial
assistance for cladding rectification work, including the
criteria to which Cladding Safety Victoria must have
regard and other requirements in accordance with which
a prioritisation decision must be made;
• applications to register owners and owners corporations
of buildings for potential financial assistance for
cladding rectification work, including the requirements
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in accordance with which applications must be made,
the information to be provided by owners and owners
corporations of buildings, the inspection of buildings by
Cladding Safety Victoria and the testing of materials,
and the applicable timeframes for applications and their
considerations;
• grants of financial assistance to owners and owners
corporations of buildings, including the process in
accordance with which grants of financial assistance
must be made, the assessment of cladding rectification
work, tendering processes for building practitioners to
undertake cladding rectification work, the monitoring of
cladding rectification work carried out under funding
agreements, and the determination of whether cladding
rectification work carried out under a funding
agreement has been completed;
• the standard terms and conditions for agreements and
contracts in relation to technical design, consultancy and
project management services; and
• any other matter or thing required or permitted by this
Bill to be prescribed or necessary to be prescribed to
give effect to this Bill.
Subclause (2) provides that the regulations may be of a general or
limited application, may differ according to differences in time,
place or circumstance, may confer a discretionary authority or
impose a duty on or leave any matter to be determined or
approved by a specified person or class of persons and may
provide for an exemption of persons or classes of persons, or
buildings or classes of buildings, land or classes of land, or
building work or plumbing work or classes of building work or
plumbing work, or materials or products or classes of materials or
products in relation to building work or plumbing work, from any
of the provisions of the Bill or the regulations. The subclause
also provides that the regulations may impose penalties not
exceeding 20 penalty units for a contravention of the regulations.
Clause 44 provides that the Governor in Council may make regulations
containing provisions of a transitional nature, including matters
of an application or savings nature, arising as a result of the
enactment of the Bill, including any repeals and amendments
made as a result of the enactment of the Bill. Regulations made
22
under this clause may be retrospective in effect, be of general or
limited application, differ according to time, place or
circumstance and leave any matter or thing to be decided by a
specified person or class or person.
Subclause (3) makes clear that, to the extent to which any
provision of the regulations takes effect from a date that is earlier
than the date of its making, the provision does not operate so as
to affect, in a manner prejudicial to any person (other than the
State or an authority of the State), the rights of that person
existing before the date of its making or to impose liabilities on
any person (other than the State or an authority of the State) in
respect of anything done or omitted to be done before the date of
its making.
Subclause (4) provides that regulations made under this clause
have effect despite anything to the contrary in any Act (other than
this Bill or the Charter of Human Rights and Responsibilities
Act 2006) or in any subordinate instrument.
Subclause (5) provides that sections 6 and 7 of the Subordinate
Legislation Act 1994 do not apply to any regulations made under
this section.
Subclause (6) provides that this clause expires on 1 December
2024.
Clause 45 provides that the Minister must ensure that a review is
undertaken and a report is prepared to determine whether there is
an ongoing need for Cladding Safety Victoria as established by
the Bill.
Subclause (2) provides that the Minister must ensure that the
review is undertaken no later than 1 January 2024.
Subclause (3) provides that the Minister must ensure that a copy
of the report referred to in subclause (1) is laid before each House
of Parliament within 7 sitting days of that House after the review
is completed.
Part 6--Transitional provisions
Clause 46 sets out definitions for commencement day, liabilities, property
and rights for the purposes of the Part.
commencement day is defined to mean the day on which Part 2
of the Bill comes into operation;
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liabilities is defined to mean all liabilities, duties and obligations,
whether actual, contingent or prospective;
property is defined to mean any legal or equitable estate or
interest (whether present or future and whether vested or
contingent) in real or personal property of any description;
rights is defined to mean all rights, powers, privileges and
immunities, whether actual, contingent or prospective.
Clause 47 provides for the transfer of staff employed by the Authority to
Cladding Safety Victoria in order to--
• maintain continuity in staffing arrangements during the
transition of Cladding Safety Victoria from the
Authority to a separate statutory authority; and
• afford fairness to staff being transferred to ensure that
they are employed on terms no less favourable and do
not lose any benefits and entitlements accrued whilst
employed by the Authority.
Subclause (1) requires the chief executive officer of the
Authority, with the approval of the Minister, to create a written
list of the executive officers and employees of the Authority, who
perform functions related to cladding rectification work
immediately before the commencement day, who are to be
transferred to Cladding Safety Victoria as Victorian Public
Service staff employed under Part 3 of the Public
Administration Act 2004.
Subclause (2) provides that an officer or employee listed under
subclause (1) is a transferred employee for the purposes of this
clause and is taken--
• to be employed under Part 3 of the Public
Administration Act 2004 with effect on the
commencement day;
• to be employed in their new position with effect on and
after the commencement day;
• to be employed on terms and conditions no less
favourable overall than those that applied to the
transferred employee immediately before the
commencement day; and
24
• to have accrued an entitlement to benefits in connection
with their employment under Part 3 of the Public
Administration Act 2004 that is equivalent to the
entitlement that the transferred employee accrued whilst
working at the Authority immediately before the
commencement day.
Subclause (3) provides that the service of a transferred employee
whilst working at Cladding Safety Victoria under Part 3 of the
Public Administration Act 2004 is to be regarded as being
continuous with the service of the transferred employee whilst
working at the Authority immediately before the commencement
day.
Subclause (4) clarifies that a transferred employee is not entitled
to receive any payment or other benefit by reason only of having
ceased to be an employee of the Authority because of the
operation of the Bill.
Subclause (5) relates to evidence of a person's employment in
legal proceedings. The subclause provides that a certificate
purportedly signed by the chief executive officer of the Authority
certifying that a person named in the certificate was, with effect
on and after the commencement day, employed, by virtue of this
clause, under Part 3 of the Public Administration Act 2004, is
admissible in evidence and is conclusive proof of the matters
stated in the certificate.
Subclause (6) preserves the superannuation entitlements of
transferred employees by stating that these entitlements are not
affected by virtue of a person becoming a transferred employee.
Subclause (7) provides that despite anything in this clause, the
following are preserved--
• the ability of any of the terms and conditions of
employment of a transferred employee to be altered by
or under any law, award or agreement with effect any
time on or after the commencement day; and
• the ability of a transferred employee to resign or be
dismissed at any time after the commencement day in
accordance with the then-existing terms and conditions
of their employment under Part 3 of the Public
Administration Act 2004.
25
Subclause (8) enables the chief executive officer of the Authority
to make an amendment to the list prepared under subclause (1)
for the purposes of correcting any technical or other minor error.
Clause 48 provides that the person appointed as the chief executive officer
of the Cladding Safety Victoria business unit in the Authority
immediately before the commencement day, and who is listed
under clause 47(1) as the chief executive officer, is taken on the
commencement day to be the chief executive officer of Cladding
Safety Victoria appointed under clause 23 of the Bill.
Clause 49 provides for the transfer of property, rights and liabilities of the
Authority to Cladding Safety Victoria in order to ensure
continuity in business operating activities during the transition of
Cladding Safety Victoria from a business unit within the
Authority to a separate statutory authority.
Subclause (1) requires the chief executive officer of the
Authority, with the approval of the Minister, to create a written
list of the property, rights and liabilities of the Authority
immediately before the commencement day that are to be
transferred to Cladding Safety Victoria.
Subclause (2) provides that on the commencement of this clause,
all property and rights listed under subclause (1) are vested in
Cladding Safety Victoria and all liabilities listed under subclause
(1) become the liabilities of Cladding Safety Victoria.
Subclause (3) relates to the admissibility of evidence in legal
proceedings involving interests in property, rights or liabilities
listed under subclause (1). This subclause provides that evidence
including that of a documentary kind, which may have been
admissible in legal proceedings in relation to the property
interests of the Authority, is also taken to be admissible in
relation to the same property interests of Cladding Safety
Victoria.
Subclause (4) relates to the application of the Evidence Act 2008
to business records in legal proceedings. This subclause provides
that the Authority's books of account for Cladding Safety
Victoria and any entries made in them prior to the
commencement day are taken to be the business records of
Cladding Safety Victoria to which the Evidence Act 2008
applies.
26
Subclause (5) states that a certificate purporting to be signed by
the chief executive officer of the Authority certifying that
property, rights or liabilities of the Authority specified in the
certificate have been transferred to Cladding Safety Victoria is
admissible in evidence in any proceedings. This subclause also
provides that the certificate is conclusive proof that the property,
rights or liabilities so specified are the property, rights and
liabilities to which a list under subclause (1) applies.
Subclause (6) enables the chief executive officer of the Authority
to make an amendment to the list prepared under subclause (1)
for the purposes of correcting any technical or other minor error.
Clause 50 provides for the substitution of the Authority with Cladding
Safety Victoria as a party to agreements that pertain to the rights
and liabilities which have been transferred from the Authority to
Cladding Safety Victoria. The clause specifies that this
substitution takes place on the commencement day and that, on
and after the commencement day, Cladding Safety Victoria will
be taken to have always been a party to an applicable agreement.
Clause 51 provides for existing matters before the Authority prior to the
commencement day.
Subclause (1) states that if, before the commencement day, a
municipal building surveyor notified the Authority of a building
that the municipal building surveyor considers requires cladding
rectification work, the notification is taken to be a notification to
Cladding Safety Victoria under clause 27.
Subclause (2) provides that if, before the commencement day, the
Authority has prioritised for potential financial assistance any
buildings in respect of which it has been notified by a municipal
building surveyor as requiring cladding rectification work, that
prioritisation is taken to be a prioritisation by Cladding Safety
Victoria under clause 28.
Clause 52 relates to the validity of actions taken under this Part and any
effects of those actions.
Subclause (1) provides that any action under this Part and its
effects cannot be regarded as--
• placing any person in breach of contract or confidence
or otherwise make a person guilty of a civil wrong;
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• placing any person in breach of or default under any Act
or other law or obligation or any provision in any
agreement, arrangement or understanding;
• fulfilling any condition that allows a person to exercise
a power, right or remedy in respect of or to terminate
any agreement or obligation;
• giving rise to any remedy for a party to a contract or an
instrument or as causing or permitting the termination of
any contract or instrument because of a change in the
beneficial or legal ownership of any property, right or
liability;
• causing any contract or instrument to be void or
otherwise unenforceable;
• frustrating any contract;
• releasing any surety or other obligor wholly or in part
from any obligation;
Subclause (2) notes that the term Act for the purposes of this
clause does not include the Charter of Human Rights and
Responsibilities Act 2006.
Part 7--Amendment of Building Act 1993
Clause 53 inserts new subsections (2) and (3) into section 134 of the
Building Act 1993 to extend the time in which a building action
can be brought, in specific circumstances.
New subsection (2) states that despite subsection (1), a building
action may be brought more than 10 years but less than 12 years
after the date of issue of the occupancy permit in respect of the
building work (whether or not the occupancy permit is
subsequently cancelled or varied) or, if an occupancy permit is
not issued, the date of issue under Part 4 of the Building
Act 1993 of the certificate of final inspection of the building
work if--
• the building action relates to a product or material that is
or could be a non-compliant or non-conforming external
wall cladding product; and
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• the building action has become or becomes prohibited
on or after 16 July 2019, but before 12 months after the
commencement of clause 53 of this Bill, by section 134
of the Building Act 1993 as in force immediately
before the commencement of clause 53 of the Bill.
New subsection (2) provides the State and building owners
additional time to conduct due diligence activities to identify
relevant building work and building practitioners against whom
to bring legal proceedings. It is intended that these activities will
have a deterrent effect on the building industry and assist the
State to recoup costs associated with the cladding rectification
program.
New subsection (3) provides a definition for cladding building
action for the purposes of section 134.
Clause 54 amends section 137F of the Building Act 1993 to provide details
regarding when the Crown will be subrogated to all the rights and
remedies available to building owners.
Subclause (1) inserts a new section 137F(1) to state that the
section applies if, after the commencement of clause 54 of the
Bill, Cladding Safety Victoria pays an amount to the owner of a
building by way of a grant of financial assistance in relation to
cladding rectification work for the building.
Subclause (2) amends section 137F(2) to substitute "at the
relevant time" with "when the financial assistance is paid to the
payee" in order to clarify that the Crown's subrogation rights are
triggered when financial assistance is paid by Cladding Safety
Victoria to the owner of a building.
Subclause (3) inserts new section 137F(9A) to preserve any right
of subrogation conferred on the Crown under section 137F of the
Act prior to the amendment of the section.
Subclause (4) makes consequential amendments to the definitions
in section 137F(10) by repealing the definition of relevant time
and making grammatical changes to the preceding definition of
officer.
Clause 55 amends section 197 of the Building Act 1993 to remove the
Authority's cladding rectification functions, to reflect their
transfer to Cladding Safety Victoria. The clause repeals
section 197(f)(iv) to remove the provision of information and
29
advice (including to consumers) on matters relating to cladding
rectification work from the list of the Authority's functions,
repeals section 197(fa) to remove monitoring and providing
financial assistance in relation to cladding rectification work
from the list of the Authority's functions, and amends
section 197(f)(iii) to make a minor consequential amendment.
Clause 56 amends section 205DA of the Building Act 1993 to reflect the
establishment of Cladding Safety Victoria as a public body under
the Financial Management Act 1994 that is required to establish
and administer its own bank accounts.
Subclause (1) repeals section 205DA(d) to remove the
requirement that money appropriated by Parliament for the
purposes of the Cladding Safety Victoria account must be paid
into the Victorian Building Authority Fund's Cladding Safety
Victoria account.
Subclause (2) repeals section 205DA(e) to remove the
requirement that grants or other amounts received from the
Commonwealth for the purpose of cladding rectification work
must be paid into the Victorian Building Authority Fund's
Cladding Safety Victoria account.
Clause 57 repeals section 205DB(1)(a) of the Building Act 1993 to reflect
the transfer of cladding rectification functions from the Authority
to Cladding Safety Victoria. This clause removes the
requirement that any amounts required to enable the Authority to
carry out its functions in relation to cladding rectification work
must be paid out of the Victorian Building Authority Fund's
Cladding Safety Victoria account, as the Authority will no longer
be performing these functions.
Clause 58 amends section 259AB of the Building Act 1993 to expand the
scope of information the Authority can share and the
organisations the Authority can enter into information sharing
arrangements with. The purpose of this clause is to enable the
Authority and Cladding Safety Victoria to share information
which will assist them to carry out their respective regulatory and
cladding rectification functions.
Subclause (1) inserts "information in relation to cladding
rectification work" into section 259AB(2) to broaden the type of
information the Authority may share and receive pursuant to an
information sharing arrangement.
30
Subclause (2) inserts "Cladding Safety Victoria" and
"the Department of Treasury and Finance" into the definition of
relevant agency in section 259AB(7) to increase the number of
organisations the Authority may enter into information sharing
arrangements with.
Part 8--Amendment of Public Administration Act 2004
Clause 59 inserts new section 16(1)(k) into the Public Administration
Act 2004 to include the chairperson within the meaning of this
Bill as a person with the functions of a public service body Head
within the meaning of that Act in relation to employees in
Cladding Safety Victoria.
31