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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Building Amendment (Cladding Rectification)
Bill 2019
TABLE OF PROVISIONS
Clause Page
1 Purpose 1
2 Commencement 2
3 Principal Act 2
4 Definitions 2
5 Schedule 2 to apply 3
6 Relevant building surveyor must apply for building permit
number for building permit 3
7 Issue of building permit number 3
8 Authority may refuse to issue building permit number 4
9 New Division 4 inserted in Part 9 4
10 Functions of the Authority 7
11 Victorian Building Authority Fund--establishment and
structure 7
12 Payments into Building account 8
13 Payments out of the Building account 8
14 New sections 205DA and 205DB inserted 9
15 Building permit levy must be paid 11
16 Building permit application must contain information about cost
of building work 13
17 Relevant building surveyor must refuse permit in certain
circumstances 13
18 Section 205I substituted 14
19 Authority must be notified of increased building costs 16
20 Authority may reassess levy after building permit issued 16
21 Authority to give notice of additional levy to be paid 17
22 New section 205LBA inserted 18
23 Authority may impose amount of penalty levy 18
24 Review by VCAT 19
25 New Subdivision 4C inserted in Division 2 of Part 12 19
26 Additional powers 20
27 New sections 277 and 278 inserted 20
28 Repeal of this Act 22
═════════════
Endnotes 23
1 General information 23
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PARLIAMENT OF VICTORIA
Introduced in the Assembly
Building Amendment (Cladding
Rectification) Bill 2019
A Bill for an Act to amend the Building Act 1993 in relation to
cladding rectification and for other purposes.
The Parliament of Victoria enacts:
1 Purpose
The purpose of this Act is to amend the Building
Act 1993--
(a) to confer further functions on the Victorian
5 Building Authority in relation to cladding
rectification; and
(b) to provide financial assistance for building
work associated with cladding rectification;
and
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(c) to provide for the subrogation of the Crown
to the rights and remedies of an owner to
whom financial assistance is given; and
(d) to establish a new account in the Victorian
5 Building Authority Fund; and
(e) to impose an additional levy on certain
building permits.
2 Commencement
(1) Subject to subsection (2), this Act comes into
10 operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
operation before 1 July 2020, it comes into
operation on that day.
3 Principal Act
15 In this Act, the Building Act 1993 is called the
Principal Act.
4 Definitions
(1) Insert the following definitions in section 3(1) of
the Principal Act--
20 "cladding rectification work means--
(a) building work in connection with, or
otherwise related to, a product or
material that is, or could be, a
non-compliant or non-conforming
25 external wall cladding product; or
(b) work of a type specified in a notice
under section 185I of the Local
Government Act 1989;
non-compliant or non-conforming external wall
30 cladding product means--
(a) an external wall cladding product that
does not comply with the requirements
of this Act and the regulations; or
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(b) an external wall cladding product that is
installed or used in, or applied to, a
building in a manner that does not
comply with the requirements of this
5 Act and the regulations; or
(c) a high risk external wall cladding
product that is used in contravention of
a declaration under section 192B
applying to that product;".
10 (2) Insert the following definitions in section 3(1) of
the Principal Act--
"regional Victoria has the same meaning as in
section 18(8) of the First Home Owner
Grant Act 2000;
15 staged permit means a building permit referred to
in section 20(b);".
5 Schedule 2 to apply
(1) In note 1 at the foot of section 18 of the Principal
Act, for "determined" substitute "calculated".
20 (2) In note 2 at the foot of section 18 of the Principal
Act, for "determined (see section 205H(1)"
substitute "calculated (see section 205H(1) and
(1A)".
6 Relevant building surveyor must apply for building
25 permit number for building permit
Section 18AA(2)(c) of the Principal Act is
repealed.
7 Issue of building permit number
In section 25BA(1)(b) of the Principal Act, for
30 "determined" substitute "calculated".
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8 Authority may refuse to issue building permit
number
In section 25BB(b) of the Principal Act, for
"determined" substitute "calculated".
5 9 New Division 4 inserted in Part 9
After section 137E of the Building Act 1993
insert--
"Division 4--Cladding rectification
subrogation
10 137F Subrogation
(1) This section applies if--
(a) after the commencement of this
Division, the Authority pays an amount
to an owner of a building (the payee) by
15 way of financial assistance in relation
to cladding rectification work on the
building; or
(b) before the commencement of this
Division, an amount was paid by or on
20 behalf of the Crown in right of the State
of Victoria to an owner of a building
(the payee) by way of financial
assistance in relation to cladding
rectification work on the building.
25 (2) At the relevant time, the Crown is
subrogated to all the rights and remedies of
the payee against any person in relation to
the installation or use of any non-compliant
or non-conforming external wall cladding
30 product, or other building work, that required
the cladding rectification work to be
undertaken.
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(3) If a right or remedy to which the Crown is
subrogated under this section is exercisable
against an entity that is not an individual, it
is enforceable jointly and severally against
5 the entity and the people who were its
officers at the time the act or omission that
gave rise to the right or remedy occurred.
(4) If it is proved that an act or omission by an
entity occurred without the knowledge or
10 consent of an officer of the entity, a right or
remedy is not enforceable as provided by
subsection (3) against the officer in relation
to the act or omission.
(5) The Crown may exercise its rights and
15 remedies under this section in its own name
or in the name of the payee.
(6) If the Crown brings proceedings under this
section in the name of the payee, the Crown
must indemnify the payee against any costs
20 awarded against the payee in the
proceedings.
(7) If, in exercising its rights and remedies under
this section, the Crown recovers more money
than the amount of financial assistance paid
25 to the payee, the Crown must pay the
difference to the payee after deducting costs
incurred to recover the money.
(8) The payment of an amount referred to in
subsection (1) in relation to cladding
30 rectification work does not affect any right or
remedy of the Crown by virtue of
subsection (2) to recover from a person in
relation to the installation or use of any
non-compliant or non-conforming external
35 wall cladding product, or other building
work, that required the cladding rectification
work to be undertaken.
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(9) A reference in this section to the rights of a
payee includes any right the payee may have
under section 86 of the Sentencing
Act 1991.
5 (10) In this section--
officer--
(a) in relation to an entity that is a
corporation--means an officer of
the corporation within the
10 meaning of section 9 of the
Corporations Act; or
(b) in relation to an entity that is
neither an individual nor a
corporation--means an officer of
15 the entity within the meaning of
section 9 of the Corporations Act;
relevant time means--
(a) in the circumstances referred to in
subsection (1)(a)--when the
20 financial assistance is paid to the
payee; or
(b) in the circumstances referred to in
subsection (1)(b)--when this
Division commences.
25 137G Repayment of financial assistance
(1) This section applies if--
(a) a payee has been paid an amount
referred to in section 137F(1) in
relation to cladding rectification work;
30 and
(b) the payee receives or recovers from
another source or sources an amount in
relation to the installation or use of any
non-compliant or non-conforming
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external wall cladding product, or other
building work, that required the
cladding rectification work to be
undertaken, including an amount
5 received or recovered before the
commencement of this Division.
(2) Subject to subsection (3), an amount referred
to in subsection (1)(b) is a debt payable by
the payee to the Crown.
10 (3) The total amount payable by the payee under
subsection (2) cannot exceed the amount
referred to in subsection (1)(a).".
10 Functions of the Authority
In section 197 of the Principal Act--
15 (a) in paragraph (f), after "information" insert
"and advice";
(b) in paragraph (f)(iii), after "plumbers;" insert
"and";
(c) after paragraph (f)(iii) insert--
20 "(iv) cladding rectification work;";
(d) after paragraph (f) insert--
"(fa) to monitor and provide financial
assistance in relation to cladding
rectification work;".
25 11 Victorian Building Authority Fund--establishment
and structure
In section 205(2) of the Principal Act--
(a) in paragraph (b), for "account." substitute
"account; and";
30 (b) after paragraph (b) insert--
"(c) the Cladding Safety Victoria account.".
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12 Payments into Building account
In section 205A(1) of the Principal Act--
(a) in paragraph (b), after "Plumbing account"
insert "and money required by section
5 205DA to be paid into the Cladding Safety
Victoria account";
(b) in paragraph (c)--
(i) in subparagraph (i)--
(A) omit "of Division 2";
10 (B) after "levy" insert "(other than
amounts received on account of,
or in relation to, the building
permit levy payable under
section 205G(2A))";
15 (ii) in subparagraph (ii)--
(A) omit "of Division 2";
(B) after "section 205LJ(1)" insert
"(other than amounts received on
account of, or in relation to, the
20 building permit levy payable
under section 205G(2A))";
(c) in paragraph (h), after "Fund" insert
"(other than money required or authorised
by section 205DA to be paid into or credited
25 to the Cladding Safety Victoria account)".
13 Payments out of the Building account
In section 205B(2) of the Principal Act, after
"section 205D" insert "or the Cladding Safety
Victoria account under section 205DB".
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14 New sections 205DA and 205DB inserted
After section 205D of the Principal Act insert--
"205DA Payments into the Cladding Safety
Victoria account
5 There must be paid into the Cladding Safety
Victoria account--
(a) any amounts received by the Authority
under Subdivision 4 on account of the
building permit levy payable under
10 section 205G(2A); and
(b) the following received by the Authority
on account of, or in relation to, the
building permit levy payable under
section 205G(2A)--
15 (i) any amounts under Subdivision
4A or 4B;
(ii) any penalty levy imposed by the
Authority under those
Subdivisions;
20 (iii) any costs charged by the
Authority under section 205LJ(1);
and
(c) income from the investment of the
Cladding Safety Victoria account; and
25 (d) money appropriated by Parliament for
the purposes of the Cladding Safety
Victoria account; and
(e) grants or other amounts received from
the Commonwealth for the purpose of
30 cladding rectification work; and
(f) any other money required or authorised
by or under this or any other Act or the
regulations to be paid into or credited to
the Cladding Safety Victoria account.
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205DB Payments out of the Cladding Safety
Victoria account
(1) There must be paid out of the Cladding
Safety Victoria account--
5 (a) any amounts required to enable the
Authority to carry out its functions in
relation to cladding rectification work;
and
(b) the amount of any refunds required to
10 be given by the Authority under
section 205LBA(1)(b); and
(c) any amounts authorised by the Minister
for the purposes of conducting--
(i) the review under Subdivision 4C;
15 and
(ii) any other review of this Act, the
regulations and any other Acts or
regulations related to the building
industry; and
20 (d) any amounts directed under
subsection (2) to be paid into the
Consolidated Fund; and
(e) any other amounts required or
authorised to be paid out of the
25 Cladding Safety Victoria account by or
under this or any other Act.
(2) If the Treasurer is satisfied that there is in the
Cladding Safety Victoria account at any time
an amount in excess of the amount required
30 to meet the anticipated payments from the
account, the Treasurer, after consultation
with the Authority and the Minister, may
direct the payment of the whole or any part
of that excess amount out of the account into
35 the Consolidated Fund.".
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15 Building permit levy must be paid
(1) After section 205G(2) of the Principal Act
insert--
"(2A) In addition to the levies imposed by
5 subsections (1) and (2), a building permit
levy in the amount calculated under
subsection (2B) or (2C) must be paid in
relation to the cost of building work for
which a building permit is required in respect
10 of a building--
(a) that is not, or will not be, in regional
Victoria; and
(b) that is, or will be, of any of the
following classes of building--
15 (i) a class 2 building;
(ii) a class 3 building;
(iii) a class 4 building;
(iv) a class 5 building;
(v) a class 6 building;
20 (vi) a class 7 building;
(vii) a class 8 building.
Note
A levy paid under subsection (2A) is paid into the
Cladding Safety Victoria account of the Victorian
25 Building Authority Fund (see section 205DA(a)).
(2B) If the building permit is a permit other than a
staged permit, the levy imposed by
subsection (2A) is calculated as follows--
(a) if the cost of the building work for
30 which the permit is required is
$800 000 or more but less than
$1 000 000--0*128 cents in every
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dollar of the cost the building work for
which the permit is required;
(b) if the cost of the building work for
which the permit is required is
5 $1 000 000 or more but less than
$1 500 000--0*256 cents in every
dollar of the cost of the building work
for which the permit is required;
(c) if the cost of the building work for
10 which the permit is required is
$1 500 000 or more--0*82 cents in
every dollar of the cost of the building
work for which the permit is required.
(2C) If the building permit is a staged permit, the
15 levy imposed by subsection (2A) is
calculated as follows--
(a) if the cost of the whole of the building
work is $800 000 or more but less than
$1 000 000--0*128 cents in every
20 dollar of the cost the building work for
which the permit is required;
(b) if the cost of the whole of the building
work is $1 000 000 or more but less
than $1 500 000--0*256 cents in every
25 dollar of the cost of the building work
for which the permit is required;
(c) if the cost of the whole of the building
work is $1 500 000 or more--
0*82 cents in every dollar of the cost of
30 the building work for which the permit
is required.".
(2) In section 205G(3) of the Principal Act, after
"payable" insert "under subsection (1) or (2)".
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(3) After section 205G(3) of the Principal Act
insert--
"(4) In this section a reference to a particular
class of building is a reference to that class
5 of building within the meaning of the
Building Code of Australia.".
16 Building permit application must contain
information about cost of building work
(1) After section 205H(1) of the Principal Act
10 insert--
"(1A) If an application is for a staged permit, the
application must also--
(a) specify the contract price for the whole
of the building work (including the cost
15 of labour and materials), if there is a
contract for the whole of the building
work; or
(b) in any other case, include sufficient
information to enable the relevant
20 building surveyor to estimate the cost
of the whole of the building work
(including the cost of labour and
materials).".
(2) In section 205H(2) of the Principal Act, for
25 "subsection (1)" substitute "subsections (1)
and (1A)".
17 Relevant building surveyor must refuse permit in
certain circumstances
In section 205HA(b)(i) of the Principal Act, after
30 "section 205H(1)(b)" insert "or (1A)(b)".
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18 Section 205I substituted
For section 205I of the Principal Act substitute--
"205I Calculation and notification of levy
(1) If an application is for a building permit
5 other than a staged permit--
(a) the relevant building surveyor must--
(i) estimate the cost of the building
work (including the cost of labour
and materials) for which the
10 building permit is sought, having
regard to the information given
under section 205H(1)(a) or (b);
and
(ii) without delay, give the Authority
15 and the applicant written notice of
the estimate; and
(b) the Authority must--
(i) calculate the amount of building
permit levy payable; and
20 (ii) give the applicant written notice
of the amount calculated under
subparagraph (i).
(2) If an application is for a staged permit--
(a) the relevant building surveyor must--
25 (i) estimate the cost of the whole of
the building work (including the
cost of labour and materials),
having regard to the information
given under section 205H(1A)(a)
30 or (b); and
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(ii) estimate the cost of the stage of
the building work (including the
cost of labour and materials) for
which the permit is sought, having
5 regard to the information given
under section 205H(1)(a) or (b);
and
(iii) without delay, give the Authority
and the applicant written notice of
10 the matters specified in
subsection (3); and
(b) the Authority must--
(i) determine the applicable rate of
the building permit levy under
15 section 205G(2C); and
(ii) calculate the amount of building
permit levy payable under
section 205G in relation to the
cost of the stage of the building
20 work for which the permit is
sought; and
(iii) give the applicant written notice
of the rate determined under
subparagraph (i) and the amount
25 calculated under subparagraph (ii).
Notes
1 The building permit levy is imposed under
section 205G. The amount of building permit
levy payable in relation to a building permit is
30 the sum of amounts payable under
section 205G(1), (2) and (2A).
2 The imposition and rate of building permit levy
under section 205G(2A) in relation to staged
permits will depend on the cost of the whole of
35 the building work--see section 205G(2C).
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(3) For the purposes of subsection (2)(a)(iii), the
matters are--
(a) the estimates referred to in
subsection (2)(a)(i) and (ii); and
5 (b) whether the application is for the final
stage of the building work.".
19 Authority must be notified of increased building
costs
In section 205KA(1) of the Principal Act, after
10 "building permit" insert "other than a staged
permit".
20 Authority may reassess levy after building permit
issued
(1) In section 205L(1)(b) of the Principal Act, for
15 "section 205I" substitute "section 205I(1)".
(2) After section 205L(1) of the Principal Act
insert--
"(1A) If a staged permit has been issued, the
Authority may also reassess the amount of
20 building permit levy imposed by
section 205G(2A) after a building permit for
the final stage of the building work has been
issued because--
(a) of a variation made to the building
25 work which has resulted in an increase
in the cost of the whole of the building
work; or
(b) the estimate under section 205I(2) or
(3) of the cost of the whole of the
30 building work was incorrect; or
(c) the Authority considers that the
information provided by the applicant
in the application for the building
permit required under
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section 205H(1A) was incorrect or
misleading.".
21 Authority to give notice of additional levy to be paid
In section 205LB(3) of the Principal Act, in the
5 definition of person liable to pay the additional
amount of levy--
(a) in paragraphs (a) and (b), for "building levy"
substitute "building permit levy";
(b) in paragraph (c), for "permit;" substitute
10 "permit; or";
(c) after paragraph (c) insert--
"(d) if the reassessment of the building
permit levy was based on the ground
under section 205L(1A)(a) and the
15 variation to the building work is not
related to an amendment of the building
permit, the owner of the building or
land at the time at which the work that
caused the increase to the cost of the
20 building work was carried out; or
(e) if the reassessment of the building
permit levy was based on the ground
under section 205L(1A)(a) and the
variation to the building work is related
25 to an amendment of the building
permit, the applicant for the amendment
of the permit; or
(f) if the reassessment of the building
permit levy was based on a ground
30 under section 205L(1A)(b) or (c), the
applicant for the building permit;".
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22 New section 205LBA inserted
After section 205LB of the Principal Act insert--
"205LBA Authority to give notice of refund
(1) If a reassessment of the building permit levy
5 under section 205L(1A)(b) or (c) is less than
the amount of levy calculated under
section 205I by at least the prescribed
amount, the Authority must give to the
person who paid the levy--
10 (a) a notice of the reassessment of the levy;
and
(b) a refund of the difference between the
amount of levy the person paid and the
reassessed levy amount.
15 (2) A notice under subsection (1) must state that
the person given the notice has the right to
apply to VCAT for review of the
reassessment of building permit levy.
(3) In this section--
20 prescribed amount means--
(a) the amount prescribed by the
regulations (if any); or
(b) if an amount is not prescribed,
$20.".
25 23 Authority may impose amount of penalty levy
(1) In section 205LC(1) of the Principal Act--
(a) for "determined" substitute "calculated";
(b) after "section 205L(1)(a) or (c)" insert
"or (1A)(a) or (c)";
30 (c) in paragraph (a), after "section 205L(1)(a)"
insert "or (1A)(a)";
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(d) in paragraph (b), after "section 205L(1)(c)"
insert "or (1A)(c)".
(2) In section 205LC(2) of the Principal Act, after
"section 205L(1)(a)" insert "or (1A)(a).".
5 24 Review by VCAT
At the end of section 205LF of the Principal Act
insert--
"(2) A person who is given a notice under
section 205LBA(1) may apply to VCAT for
10 review of the reassessment of the amount of
building permit levy by the Authority under
section 205L.".
25 New Subdivision 4C inserted in Division 2 of Part 12
After Subdivision 4B of Division 2 of Part 12 of
15 the Principal Act insert--
"Subdivision 4C--Review of cladding
rectification levy
205LO Review of cladding rectification levy
(1) The Minister must ensure that a review of
20 the additional levy imposed under
section 205G(2A) is undertaken no later than
4 years after the commencement of
section 15 of the Building Amendment
(Cladding Rectification) Act 2019.
25 (2) The purpose of the review is to determine
whether there is an ongoing need for that
additional levy to fund cladding rectification
works.
(3) The Minister must cause a report of the
30 review to be laid before each House of
Parliament within 7 sitting days of that
House after the expiry of the 4-year period
referred to in subsection (1).".
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26 Additional powers
In section 262(d) of the Principal Act, for
"fees prescribed" substitute "levies or fees
imposed or prescribed by or".
5 27 New sections 277 and 278 inserted
After section 276 of the Principal Act insert--
"277 Transitional and savings provisions--
Building Amendment (Cladding
Rectification) Act 2019
10 (1) Any amount held in the Building account
immediately before the commencement day
for the purpose of cladding rectification
work must be paid out of that account on the
commencement day into the Cladding Safety
15 Victoria account.
(2) In this section--
commencement day means the day on which
section 11 of the Building
Amendment (Cladding Rectification)
20 Act 2019 comes into operation.
278 Transitional regulations
(1) The Governor in Council may make
regulations containing provisions of a
transitional nature, including matters of an
25 application or savings nature, arising as a
result of the enactment of the Building
Amendment (Cladding Rectification)
Act 2019, including any repeals and
amendments made by or as a result of the
30 enactment of that Act.
(2) Regulations made under this section may--
(a) have a retrospective effect to a day on
or after a date not earlier than the day
on which the Building Amendment
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(Cladding Rectification) Act 2019
receives the Royal Assent; and
(b) be of limited or general application; and
(c) differ according to time, place and
5 circumstances; and
(d) leave any matter or thing to be decided
by a specified person or class of person.
(3) To the extent to which any provision of the
regulations under this section takes effect
10 from a date that is earlier than the date of its
making, the provision does not operate so
as--
(a) to affect, in a manner prejudicial to any
person (other than the State or an
15 authority of the State), the rights of that
person existing before the date of its
making; or
(b) to impose liabilities on any person
(other than the State or an authority of
20 the State) in respect of anything done or
omitted to be done before the date of its
making.
(4) Regulations under this section have effect
despite anything to the contrary in--
25 (a) this Act or any other Act (other than the
Building Amendment (Cladding
Rectification) Act 2019 or the Charter
of Human Rights and
Responsibilities Act 2006); or
30 (b) any subordinate instrument.
(5) The following are not required for any
proposed statutory rule that is to be made
under this section--
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Building Amendment (Cladding Rectification) Bill 2019
(a) consultation under section 6 of the
Subordinate Legislation Act 1994;
(b) the preparation of a regulatory impact
statement under section 7 of the
5 Subordinate Legislation Act 1994.
(6) This section expires on 1 December 2023.".
28 Repeal of this Act
This Act is repealed on 1 July 2021.
Note
10 The repeal of this Act does not affect the continuing
operation of the amendments made by it (see section 15(1)
of the Interpretation of Legislation Act 1984).
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591124B.I-15/10/2019 22 BILL LA INTRODUCTION 15/10/2019
Building Amendment (Cladding Rectification) Bill 2019
Endnotes
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current
authorised versions of legislation and up-to-date legislative information.
By Authority. Government Printer for the State of Victoria.
591124B.I-15/10/2019 23 BILL LA INTRODUCTION 15/10/2019
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