Hansard debates

Nick STAIKOS (Bentleigh – Minister for Housing and Building, Minister for the Suburban Rail Loop) (10:17): Under the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (Charter), I make this Statement of Compatibility with respect to the Building Legislation and Treasury Legislation (Tax Relief) Amendment Bill ‍2026 (Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I have formed this opinion for the reasons outlined in this statement.

Overview of the Bill

This Bill makes amendments to the Building Act 1993 (Building Act) in relation to places of public entertainment, emergency orders, building notices and building orders, decennial insurance and designated flood-prone areas; to the Building and Construction Industry Security of Payment Act 2002 (SOP Act) in relation to the liability of authorised nominating authorities; to the Building Legislation Amendment (Buyer Protections) Act 2025 (Buyer Protections Act) in relation to the statutory insurance scheme and minimum financial requirements for building practitioner registration; to the Building and Plumbing Administration and Enforcement Act 2026 (BPAE Act) in relation to designated flood-prone areas; to the Sale of Land Act 1962 in relation to matters to be disclosed in section 32 statements and to the Water Act 1989 (Water Act) in relation to floodplain management relevant to the determination of designated flood-prone areas.

Throughout this document, there are references to the Victorian Building Authority (Authority) which is currently trading as the “Building and Plumbing Commission”. The Authority is established by Division 2 of Part 12 of the Building Act but will be replaced by the Building and Plumbing Commission (Commission) established under Part 3.1 of the BPAE Act when that Act commences in 2027.

Where clauses in the Bill will commence before the BPAE Act and thus before the Commission replaces the Authority as the building regulator, the document makes reference to the Authority. Where clauses in the Bill are intended to commence after the Commission replaces the Authority, this document makes reference to the Commission.

Human rights

This Statement of Compatibility provides an outline of the rights generally engaged by the Bill and then discusses the compatibility of the relevant Parts of the Bill with those rights.

The human rights protected by the Charter that are relevant to this Bill are as follows:

Right to privacy (section 13(a))

Section 13(a) of the Charter provides that a person has the right not to have their privacy unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought. The right to privacy is broad in scope and encompasses rights to physical and psychological integrity, individual identity, informational privacy and the right to establish and develop meaningful social relations.

Right to freedom of expression (section 15(2))

Section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds.

However, section 15(3) provides that special duties and responsibilities attach to this right, which may be subject to lawful restrictions reasonably necessary to respect the rights and reputations of others, or for the protection of national security, public order, public health or public morality.

Cultural rights (section 19)

Section 19(1) of the Charter provides that all persons with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with other persons of that background, to enjoy their culture, declare and practise their religion, and use their language. Section 19(2) of the Charter further provides specific protection for Aboriginal persons, providing that they must not be denied the right, with other members of their community, to enjoy their identity and culture, maintain and use their language, maintain kinship ties, and maintain their distinct spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

The rights in s 19 are intended to protect and promote the cultural, religious, racial and linguistic diversity of Victorian society. The rights are concerned not only with the preservation of the cultural, religious and linguistic identity of particular cultural groups, but also with their continued development.

Right to property (section 20)

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. This right requires that powers which authorise the deprivation of property are conferred by legislation or the common law, are confined and structured rather than unclear, are accessible to the public, are formulated precisely and do not operate arbitrarily.

Right to a fair hearing (section 24(1))

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The concept of a ‘civil proceeding’ is not limited to judicial decision makers but may encompass the decision-making procedures of many types of tribunals, boards and other administrative decision-makers with the power to determine private rights and interests.

The right may be limited if a person faces a procedural barrier to bringing their case before a court, or where procedural fairness is not provided. However, the entire decision-making process, including reviews and appeals, must be examined in order to determine whether the right is limited.

Presumption of innocence (section 25(1))

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

Human rights issues

Place of public entertainment permits

Place of public entertainment permits are to be required for certain public events or meetings that fall under the definition of public entertainment, held in temporary or permanent places, to ensure appropriate safety standards are in place to protect attendees. The permits are event-specific and issued for temporary public entertainment events, including sports events, business events and live music events. The place of public entertainment permit may cover public entertainment that is held over a single day or multiple days (consecutive or non-consecutive). Clause 4(3) of the Bill substitutes the definition of ‘public entertainment’ in section 3(1) of the Building Act to mean ‘an entertainment event, including a meeting, that is accessible by members of the public and meets any prescribed criteria’.

Division 1 of Part 2 of the Bill amends the provisions of the Building Act that regulate place of public entertainment permits. Clause 17 of the Bill substitutes sections 49, 50, 51 and 52 of the Building Act. Section 49 provides that a person must not provide public entertainment in a place of public entertainment unless the required permits have been obtained. Section 50 provides that the owner or occupier of a place of public entertainment must not permit the place to be used for the purpose of providing public entertainment unless the required permits have been obtained. Sections 51 and 52 require that the use of a place of public entertainment or a prescribed temporary structure complies with the relevant permit.

The Bill substitutes sections 49 and 50 of the Building Act to reflect the repeal of the definition of ‘conduct’ in section 3(1) of the Building Act. Currently, ‘conduct’, in relation to public entertainment, means ‘to have a direct pecuniary interest in the proceeds or profits of the entertainment’. The intention behind the repeal of this definition is to remove the concept of financial gain from the regulation of places of public entertainment. This allows for the adoption of a risk-based criteria to determine whether a place of public entertainment permit is required, instead of relying on whether financial gain is being obtained. Clause 17, therefore, amends, among other things, the reference to ‘conduct’ in section 49 of the Building Act and the reference to ‘fee or reward’ in section 50 of the Building Act.

Freedom of thought, conscience, religion and belief (section 14), right to freedom of expression (section 15(2)) and cultural rights (section 19)

These changes, particularly the repeal of the definition of ‘conduct’ and the substitution of the definition of ‘public entertainment’, are likely to broaden the circumstances in which a place of public entertainment permit may be required for public entertainment. For instance, a free concert held at a public park may be captured by the new provisions, thus requiring a place of public entertainment permit. The changes may also capture free, publicly accessible community events or meetings such as church services. Currently, regulation 206(1)(b)(i) of the Building Regulations 2018 exempts places used for the purposes of conducting an event or activity which is organised and controlled by a community-based organisation. ‘Community-based organisation’ includes a body that is not established primarily for the purposes of profit or gain and operates in a community wholly for a philanthropic or benevolent purpose, which includes the promotion of, amongst other things, culture or religion (regulation 206(2)). This likely captures many churches and community groups who conduct religious or cultural events and activities. However, the changes introduced by the Bill will likely require that the exemptions under the Building Regulations 2018 are given fresh consideration based on the amended permit scheme.

To the extent that the amendments may prohibit public entertainment from being provided without a permit which would otherwise be permitted, the right to freedom of expression may be interfered with, in terms of both the right of persons to receive and impart information and ideas of all kinds, including by way of art or another medium. To the extent that ‘public entertainment’ involves religious or cultural beliefs, it may interfere with the right to freedom of thought, conscience, religion and belief in section 14 of the Charter. It may also interfere with cultural rights in section 19 of the Charter to the extent that it denies persons with a particular cultural, religious, racial or linguistic background the right to enjoy their culture, to declare and practice their religion and to use their language in community with other persons of that background.

The exact extent and nature of this interference will be determined by the content of any future regulations and, in particular, the risk-based criteria that is adopted in the regulations. The policy intent behind the changes is to move from a profit-based approach to a risk-based approach to better support public safety at public entertainment. This shift means that public entertainment events and meetings may be captured that were not previously captured. The exact thresholds and exemptions that will determine whether a particular activity is subject to the permit requirement will be determined by regulation. That regulation will be subject to an ordinary process under the Subordinate Legislation Act 1994 involving a Regulatory Impact Statement, public consultation and the preparation of a Human Rights Certificate certifying the compatibility of the regulations with the Charter.

I otherwise consider that any interference with the above rights, to be ultimately determined by regulation, is reasonable and justified for the following reasons:

• the nature and extent of the limit – the amendments are limited to places of public entertainment, and will not affect the freedom of expression, religious or cultural rights in private or in other places;

• the importance of the limitation – being to improve the places of public entertainment scheme to better support public safety at public entertainment and to reflect the growing diversity and complexity of public events, to which public safety risks may be just as significant with regards to a community-based event as a commercial one;

• the relationship between the limitation and its purpose – the purpose is supported by establishing clear criteria for determining whether a place of public entertainment permit is required, which includes defined triggers and exemptions that are based on the risk level of the public entertainment;

• any less restrictive means – subject to any exemptions, the risk-based criteria will ensure that no single consideration, such as financial gain, is determinative of whether a place of public entertainment permit is required, rather, the focus is shifted to the risk posed to the public by the proposed public entertainment; and

• the criteria for determining whether the public entertainment requires a public entertainment permit is to be prescribed by regulation (see clause 4(3), definition of ‘place of public entertainment’), which will require the Minister to produce a Human Rights Certificate certifying the compatibility of the regulations with the Charter. The same applies for any regulation made exempting places of public entertainment from the provisions of the Act and the regulations.

For these reasons, I consider that clause 17 is compatible with these Charter rights.

Powers of inspection

Clause 15 inserts new section 48A into the Building Act, which provides that the municipal building surveyor of a municipal district or the Commission may cause any place of public entertainment, for which an occupancy permit has been issued, to be inspected from time to time to determine whether the permit is being complied with. The municipal building surveyor may only inspect a place within the relevant municipal district.

Clause 18 inserts new sections 52A and 52B, which permit persons to apply for early certification of a prescribed temporary structure prior to the prescribed temporary structure being erected. The early certification will detail how the prescribed temporary structure must be erected and may contain a condition which requires the verification of the prescribed temporary structure after it is installed through an inspection process. After the prescribed temporary structure is installed, section 52B provides that the verification must be undertaken by a prescribed person or person in a prescribed class of person which will be specified in regulations.

Right to privacy (section 13(a))

While powers of inspection are generally considered to interfere with the right to privacy, in my view this provision is unlikely to impact privacy in a material way. There would be a low to negligible expectation of privacy in relation to a place of public entertainment, particularly in the context where a person has applied for an occupancy permit with conditions of inspection. In these circumstances, the person has voluntarily assumed special obligations which attach to the permit or the early certification.

To the extent that it constitutes an interference, I consider it would not be arbitrary. The provisions are precise and appropriately circumscribed and are proportionate to the legitimate aim of ensuring compliance with the permit scheme to support public safety in public spaces. The inspection powers are limited to circumstances where the relevant person is ensuring compliance with an occupancy permit, or with the conditions of an early certification of a prescribed temporary structure. I am thus satisfied these provisions are compatible with the Charter.

Immunities for building surveyors

Clause 38 of the Bill inserts new sections 128B and 128C into the Building Act to provide for statutory immunities for certain building surveyors. New section 128B(1) provides that a municipal building surveyor or private building surveyor is not personally liable for acts or omissions done in good faith in reliance on certain certifications and verifications given in relation to a prescribed temporary structure. Subsections (1) and (2) of new section 128C provide that, where a building surveyor (the ‘original building surveyor’) issues an occupancy permit and another building surveyor (the ‘subsequent building surveyor’) decides an application to amend the occupancy permit, the subsequent building surveyor, in issuing any amended occupancy permit, is not personally liable for anything done or omitted to be done in reliance on the matters which the original building surveyor was satisfied of in issuing the original occupancy permit.

New sections 128B(2) and 128C(3) provide that these liabilities instead attach to the certifier, verifier or original building surveyor (as applicable), which, in effect, provides for an indemnity for building surveyors in the specified circumstances.

Right to a fair hearing (section 24) and right to property (section 20)

The fair hearing right is relevant where statutory immunities are provided to certain persons as this right has been held to encompass a person’s right of access to the courts for determination of a civil claim. Similarly, insofar as a cause of action may be considered ‘property’ within the meaning of section 20 of the Charter, clause 38 may also engage this right by depriving a claimant’s ability to obtain effective relief.

Clause 38 will not interfere with the right to a fair hearing or property because parties seeking redress are instead able to bring a claim against the specified parties to which the provision attaches that liability to (new sections 128B(2) and 128C(3)). Additionally, in relation to new section 128B, the building surveyor remains liable for any conduct not performed in good faith. Accordingly, this provision does not limit the right to property or a fair hearing under the Charter.

Emergency orders, building notices and building orders

Division 2 of Part 2 of the Bill amends the provisions of the Building Act that relate to emergency orders, building notices and building orders. The Bill proposes to expand the scope of the existing powers to enable emergency orders, building notices and building orders to be issued in relation to ‘condition-altered land’. Clause 45 of the Bill defines ‘condition-altered land’ as land on which a building is situated and the condition of which has been impacted by a condition-altering event. ‘Condition-altering event’, as defined, means an event or activity that fundamentally compromises the integrity and stability of the land.

Division 1 of Part 8 of the Building Act is concerned with the making of emergency orders for the enforcement of safety and building standards. Section 103(1) provides that an emergency order may direct an owner or occupier to evacuate a building or land or a place of public entertainment, and if an order is given, to direct any person to vacate the building, land or place. Section 103(2) provides that an emergency order may prohibit any person from entering, using or occupying the building, land or place for a specified period unless permitted by the municipal building surveyor. Clause 47 of the Bill proposes to expand the scope of the powers in section 103 to include ‘condition-altered land’.

Section 104(1)(a) of the Building Act provides that an emergency order may require the owner or occupier of a building or land or a place of public entertainment not to conduct, or not to allow the conduct, of public entertainment or immediately cease to conduct public entertainment. Section 104(1)(b) provides that an emergency order may require the owner or occupier to stop building work or other work necessary to make the building, land or place safe or to secure the building, land or place from access. Clause 48 of the Bill amends section 104 to include ‘condition-altered land’.

Division 2 of Part 8 of the Building Act is concerned with the making of building notices and building orders. Section 111(3) provides that a building order made in accordance with this section may direct an owner or occupier to evacuate a building or land or a place of public entertainment within a specified time or times and if an order is given, direct any person to vacate a building or land or a place of public entertainment within a specified time or times. Section 111(4) provides that a building order may prohibit a person from entering, using or occupying a building, land or a place of public entertainment for a specified period unless permitted by the municipal building surveyor. Clause 52 of the Bill amends section 111 to include ‘condition-altered land’.

Section 112 of the Building Act provides that a municipal building surveyor or a private building surveyor may make a building order in accordance with that section that requires an owner or other person to stop building work. Clause 53 of the Bill amends section 112 to include ‘condition-altered land’.

Section 113 of the Building Act provides that a municipal building surveyor or a private building surveyor may make a building order in accordance with that provision that requires an owner of the building, land or place to carry out work that is of a minor nature. Clause 54 of the Bill amends section 113 to include ‘condition-altered land’.

Clause 55 amends section 118(2) of the Building Act, which provides that a person must not occupy a building, land or place in contravention of an emergency order, to extend that offence to occupation of condition-altered land in contravention of such orders, consequential to the inclusion of that land in the powers outlined above.

Right to property (s 20) and right to privacy (section 13(a))

Emergency orders, building notices and building orders made in relation to ‘condition-altered land’ may interfere with the following rights under the Charter:

• the right to property under section 20 of the Charter, to the extent that a decision under these provisions deprives a person of their property because it interferes with a person’s enjoyment of their property and restricts how a person may use their property; and

• the right to privacy under section 13(a) of the Charter, to the extent that ‘condition-altered land’ encompasses a person’s private property or private residence.

However, I consider that these rights are not limited. First, any deprivation of property must be in accordance with the law because the legal authorisation for the deprivation is publicly accessible and governed by a clear and accessible process. Second, the clauses of the Bill serve the important purpose of enabling building surveyors to make emergency orders and serve building notices and building orders in respect of land on which a building is situated and the condition of which has been impacted by a ‘condition-altering event’, such as a landslide. Finally, building surveyors can only make orders for the clear purposes provided for in the Building Act, and in accordance with the provisions in Part 8 of the Building Act, which supports public safety in emergency and endangering scenarios. Ultimately, these clauses promote the right to life by enabling building surveyors to make orders in circumstances where they form the opinion that the order is necessary because of a danger to life or property (section 102 of the Building Act). For these reasons, I consider that any limitation on these rights is lawful and not arbitrary.

Directions to provide information to the Commission

Clause 65 of the Bill inserts new section 137ZZZI into the Building Act, which provides that the Commission may direct a designated insurer offering an approved decennial insurance product to provide information prescribed under new section 137ZZZI(1), which relevantly includes:

• details of contraventions by a developer in relation to a decennial insurance policy;

• the name of the developer of the residential apartment building to which the policy relates;

• identifying details of the residential apartment building to which each policy relates, including the name of the insured owners corporation; and

• prescribed information.

Right to privacy (section 13(a))

To the extent that information obtained by the Commission includes personal information, new section 137ZZZI will engage the right to privacy. This is especially relevant to new section 137ZZZI(1), where the Commission may direct a designated insurer to provide the details of any contravention by a developer of a provision of the Insurance Contracts Act 1984 (Cth) in relation to a decennial insurance policy or proposed decennial insurance policy. While a developer will generally be a body corporate, it may extend to information about a natural person.

In my opinion, any limit on the right to privacy is lawful and not arbitrary. The information that can be requested by the Commission is limited to information that is relevant to the performance of the Commission’s functions. The functions of the Commission, as discussed above, relate to protecting consumers of domestic building work by administering the statutory insurance scheme effectively and ensuring compliance with building legislation, including the decennial insurance scheme under Division 9 of Part 9B of the Building Act.

Under section 137ZZZI the Commission is required to issue a written notice to a designated insurer. New section 137ZZZI(1) limits the type of information the Commission can request from a designated insurer in these circumstances. These provisions are precise and appropriately circumscribed to their purpose.

Under Part 10.1 of the BPAE Act (specifically, section 461 of that Act), the Commission is prohibited from using or disclosing to another person any building and plumbing information which the Commission holds or obtains in performing a function under the building legislation. Also, under Part 10.1 of the BPAE Act, use and disclosure of such information may only be done in the circumstances specified in Part 10.1.

These provisions establish an appropriate balance between enabling the Commission to perform its functions and achieve its statutory objectives, by ensuring the Commission can access the information needed to understand the issues faced by insurers and by developers arranging for the issue of decennial insurance policies for the residential apartments they construct, while protecting the rights of individuals to have their privacy and reputation protected.

Consequently, I consider that these provisions under the Bill are compatible with the right to privacy under section 13 of the Charter.

VCAT power to make orders to access a property in relation to decennial insurance

Clause 65 inserts new section 137ZZZR into the Building Act, which provides that a prescribed person (‘the applicant’) may apply to VCAT for an order requiring the occupier of a lot in a residential apartment building to grant access to the lot to the applicant for a prescribed purpose.

Right to privacy (section 13(a))

If VCAT grants the order, the power to enter and inspect a lot in a residential apartment building may interfere with the right to privacy, to the extent that the lot is private property or a private residence.

However, powers of entry are generally compatible with the Charter where the power is appropriately confined and subject to independent oversight. Here, a person must apply to VCAT for an order to grant access. VCAT will be a public authority when determining the application and will be obliged to consider privacy rights when granting access. The order can only be granted for the purposes of inspecting the property in accordance with the terms of the relevant decennial insurance policy, to determine if there is a relevant defect, or to carry out work under the decennial insurance policy. This serves the important purpose of protecting the interests of other persons in circumstances where there is a relevant defect in the residential apartment building. Further, under new section 13ZZZR(4), VCAT may grant the order only if it is satisfied that:

• there is a defect that can only be reasonably inspected, determined or rectified by accessing the lot;

• the applicant has given written notice to the occupier of the lot advising that access is needed for a prescribed purpose and requesting the occupier consent to the applicant being given access to the lot for the prescribed purpose; and

• not less than 14 days after the notice is given, the occupier has not consented to giving access to the applicant for the prescribed purpose.

I therefore consider that any interference with the right to privacy will be in circumstances which are neither unlawful or arbitrary. Accordingly, I consider that the provisions are compatible with the right to privacy in section 13(a) of the Charter.

Property rights (section 20)

Powers of entry for the purpose of undertaking rectification work may amount to a deprivation of property if they substantially restrict a person’s exclusive possession, use or enjoyment of their property, particularly if such work is prolonged or poses a significant interference with a person’s ability to use and enjoy the building, land or lot.

However, I consider that any interferences with these rights would be neither unlawful nor arbitrary and would be ‘in accordance with the law’. This is because the powers are subject to appropriate safeguards. For example, as discussed above, VCAT may only grant an order under new section 137ZZZR if VCAT is satisfied of the requirements prescribed under new section 137ZZZR(4). Further, these powers serve the important purpose of enabling rectification work to be carried out. As such, they are aimed at ensuring the safety and compliance of the building and land pursuant to the relevant decennial insurance policy, thereby protecting the safety of the occupier, other land users and the general public.

Protection from liability for authorised nominating authorities

Clause 79(2) amends section 46 of the SOP Act to extend the protection from civil liability already afforded to adjudicators to authorised nominating authorities (ANA) for the duties and functions they perform under the SOP Act in good faith. ANAs are persons authorised by the Authority under section 42 of the SOP Act to nominate persons to determine adjudication applications (see definition in section 4 of the SOP Act). Their functions are set out in sections 43A and 43B of the SOP Act and include the function of nominating adjudicators for the purposes of the SOP Act, to receive and refer adjudication applications to adjudicators, to serve copies of adjudication determinations on certain persons, to provide adjudication certificates and to provide certain information to the Authority. These functions may be altered by requirements imposed by the Authority as conditions of authorisation under its powers in sections 43 of the SOP Act.

Right to fair hearing (section 24) and right to property (section 20)

As above, where an immunity clause restricts a person’s ability to access a court by effectively removing their ability to bring an action in court and depriving them of their ability to obtain effective relief due to the absence of an appropriate defendant, the right to a fair hearing and right to property may be engaged. As the immunity for ANAs in clause 79(2) acts as a complete bar to bringing a civil claim in certain circumstances, the fair hearing right and property right will be limited by this clause. However, for the reasons that follow, I consider that this clause is compatible with these rights.

In relation to fair hearing, such immunities are commonly provided for persons who perform quasi-judicial roles requiring fast, impartial and independent decisions. Immunity from personal liability allows decisions to be made in the good faith discharge of the person’s functions without fear of litigation from a party subject to an unfavourable decision. Without such immunity, the capacity for ANAs, who manage and oversee adjudicators’ performance under the SOP Act, to discharge their functions could be compromised. This clause will also bring Victoria’s SOP Act into alignment with other states’ and territories’ security of payment legislation, which confers such immunity on their ANAs. The clause also implements a recommendation made by the Legislative Assembly’s Environment and Planning Committee in its November 2023 report, concluding its ‘Inquiry into Employers and Contractors Who Refuse to Pay Their Subcontractors for Completed Works’. This recommendation was also widely supported by stakeholders during subsequent consultation undertaken by the Department during 2025. The immunity conferred deviates from the State-approved model immunity clause in that it does not transfer ANAs’ liability to another appropriate person. However, this is justified because ANAs remain subject to regulatory oversight by the Authority, which can alter or revoke their authorisation if they fail to properly perform their functions. The scope of the immunity conferred is also limited to good faith actions and omissions such that it is proportionate to the legitimate aim sought. As such, there are no less restrictive means of achieving the Bill’s objectives.

In relation to proprietary rights, any deprivation of the ability to bring an action will be ‘in accordance with law’ as these provisions are drafted in clear and precise terms and are reasonably necessary to achieve the important objective. Accordingly, the protection from liability provision in clause 79(2) is appropriately granted and so, compatible with the rights to fair hearing and property.

Declaration of flood-prone areas

Division 4 of Part 2 of the Bill will insert new section 188B of the Building Act, to enable the Minister to determine that specific areas of land are ‘designated flood-prone areas’ where, in the Minister’s opinion, there exists a 1% or higher risk of the land flooding in any 12-month period.

Section 188B of the Building Act will be inserted into the Building Act by clause 67 of the Bill and will be repealed and replaced by section 20A of the BPAE Act (to be inserted by clause 84 of the Bill) when the BPAE Act commences (see clause 95 of the Bill and section 775 of the BPAE Act for the repeals and clause 94 for transitional arrangements).

Under both section 188B and section 20A of each Act respectively, a determination of the Minister that land is a designated flood-prone area must be described by reference to a plan or plans of those areas that will be lodged in the Central Plan Office (new sections 188B(3) / 20A(3)) and must be made publicly available (sections 188B(7), (8) and (9) / 20A(7), (8) and (9)). Once made, a determination of the Minister will become relevant in a number of ways, including in the assessment of applications for building permits by building surveyors and the relevant local councils. It must also be disclosed by a vendor in a section 32 statement (clauses 130 and 131) for the sale of the land.

The Minister’s new power is intended to provide a centralised, state-based method for declaring areas of land that are flood-prone (see also clause 94 and amendments to the Water Act in Part 9 of the Bill). It will replace the current methods of determining the areas of land that are ‘liable to flooding’ by the Minister administering the Water Act under section 205 of that Act (see clause 134 of the Bill) and by local councils under regulation 5(2) of the Building Regulations 2018. A Minister’s determination is to be based on the advice of the floodplain management Authorities who will be required to prepare and give their advice about flooding and controls on development to the Minister administering the BPAE Act and the Minister administering the Planning and Environment Act 1987 (in addition to local councils, the Secretary to the Department and the local community) (see clause 133 of the Bill which amends section 202 of the Water Act).

The new scheme is designed to ensure that the determination of flood-prone areas of land is carried out as comprehensively and promptly as possible, and then consistently applied to applications for building permits.

Right to property (section 20)

Although the precise impact of the Minister making a determination will vary according to the circumstances of each area in question, this power is likely to affect a person’s use or enjoyment of their property, including residential property. For example, the making of a determination may contribute to the imposition of restrictions on building permits or to an application for a permit being refused. It may also have a consequential impact on the value of the land.

Noting that a person’s property rights may be impacted by clauses 67 and 84, and that the impact may constitute a deprivation of property, I consider that any such interference would be ‘in accordance with the law’ and so would not limit the right to property. Any interference will be authorised under legislation and drafted in clear and precise terms and is reasonably necessary to achieve the important objective of ensuring that areas of land that have a 1% or higher risk flooding in any 12-month period are identified in an accurate and timely manner and so will be subject to appropriate building controls. This ultimately mitigates against risks to public safety and buildings on the land, and ensures all parties, including for example, a land owner and a potential purchaser of a property, are aware of the risk of flooding on that land. Accordingly, I do not consider that clauses 67 or 84 limit the Charter right to property.

Disclosure of information in relation to minimum financial requirements

Clause 101 inserts new section 41A into the Buyer Protections Act, which inserts new section 316A into the Building Act. New section 316A deals with the determination of minimum financial requirements for registration under Part 11 of the Building Act, and the determination of whether an applicant for registration as a building practitioner or registered building practitioner meets those requirements. The minimum financial requirements may differ according to the class or classes of applicant or registered building practitioner or any other circumstance relating to the application for registration or the building practitioner. Section 316A(4)(a) provides that, for the purposes of determining whether an applicant for registration or a registered building practitioner meets the minimum financial requirements, the Authority may request the applicant or practitioner to provide any information or document that the Authority considers relevant.

Right to privacy (section 13(a))

To the extent that the information requested by the Authority includes personal information, the Bill will engage the right to privacy. While the provision, which gives the Authority the power to request any information or document that it considers relevant, is broad in scope, the information or documents that may be requested is nevertheless limited to such information or documents the Authority considers relevant for purpose of determining whether the applicant or practitioner meets the minimum financial requirements for the purpose of supporting the Authority’s statutory insurance scheme functions and enabling the identification and mitigation of risks associated with a registered building practitioner’s financial insecurity.

Although this provision allows the Authority to gather and analyse what may be personal identifying information, I do not consider the power to be unlawful or arbitrary, as it is for the limited purpose of determining whether an applicant or practitioner meets the minimum financial requirements. The Authority being able to ascertain whether an applicant or practitioner meets the minimum financial requirements ultimately serves the purpose of providing for appropriate regulation of the building industry and enhancing consumer protection and will impact builders who have voluntarily undertaken to practise in a regulated industry where special duties and responsibilities attach. Further, the Authority is a public authority under the Charter and is required to comply with relevant privacy laws in the handling of any personal information collected, ensuring that any interference with the right to privacy will be lawful and not arbitrary.

Accordingly, in my opinion, any limit on the right to privacy imposed by new section 316A(4)(a) inserted by clause 101 of the Bill is reasonable and justified.

Strict liability provision – payment of statutory insurance scheme premium

Clause 108 amends section 56 of the Buyer Protections Act to insert new section 137OA into the Building Act. New section 137OA provides that a building owner who enters into a prescribed insurable domestic building contract must pay the applicable statutory insurance scheme premium to the Authority before the building owner enters into a contract for the sale of the land on which the domestic building work under the insurable domestic building contract is carried out. This is a strict liability provision, imposing 500 penalty units for contravention by a natural person and 2,500 penalty units in the case of a body corporate.

Presumption of innocence (section 25(1))

By imposing a strict liability offence, new section 137OA engages the right to be presumed innocent under s ‍25(1) of the Charter. This being so, strict liability provisions will generally be compatible with the presumption of innocence where they are reasonable, necessary and proportionate and in pursuit of a legitimate objective. Strict liability offences are considered legitimate where directed at preventing loss in particular contexts. This provision will enhance compliance with regulatory requirements and support the Authority to provide assistance to subsequent building owners by strongly incentivising a building owner who enters a contract of sale for land on which domestic building work is carried out under a prescribed insurable domestic building contract, to pay the insurance premium associated with that that domestic building work. Where the applicable insurance premium is not paid by the building owner when required, the Authority may incur financial loss in providing assistance to subsequent building owners who are entitled to make a claim under the statutory insurance scheme. This may lead to an increase in insurance premiums more broadly to cover that cost and therefore may financially impact other consumers entering insurable domestic building contracts. Further, the strict liability provision is reasonable in that it does not exclude the common law defence of honest and reasonable mistake of fact.

New section 137OA provides that a failure to pay the applicable insurance premium will attract a penalty of up to 500 penalty units for a natural person. While this is at the high end of the liability spectrum for what a strict liability offence would generally attract, this is reasonable and proportionate, noting the very large values of contractual commitments by parties to domestic building contracts. It is also reasonable and proportionate considering the significant costs to the community where buildings with major faults are sold to subsequent building owners. Accordingly, this maximum penalty provides a significant incentive to comply with the requirements of the statutory insurance scheme, in order to support the Authority to provide assistance to address identified practices of undertaking defective, non-compliant or incomplete domestic building work.

For these reasons, to the extent there is any limitation to s 25(1) of the Charter imposed by this strict liability offence, these limitations are reasonable and justifiable within the meaning of s 7(2) of the Charter.

Protection of expressions associated with the statutory insurance scheme

Clause 117 amends section 56 of the Buyer Protections Act by substituting proposed section 137ZG(1) and (2) of the Building Act. New sections 137ZG(1) and (2) provide that a person must not use a prescribed expression, or any variation of a prescribed expression or word similar in sight or sound to a prescribed expression, in connection with selling insurance cover or any kind of warranty under a scheme relating to domestic building work to which the statutory insurance scheme applies unless the scheme is the statutory insurance scheme and the person does so on behalf of the Authority.

Right to freedom of expression (section 15(2))

While the prohibition in new sections 137ZG(1) and (2) on the use of prescribed expressions, or any variation of a prescribed expression or word similar in sight or sound to a prescribed expression, may restrict the right to freedom of expression in section 15(2) of the Charter, I consider that any such restriction is a lawful restriction reasonably necessary to protect public order and the rights of others within the meaning of section 15(3) of the Charter.

‘Public order’ is a wide and flexible concept which extends to laws that enable the public to engage in their personal and business affairs free from unlawful interference to their person or property. Respecting the rights of others is a similarly broad concept and would include restrictions reasonably necessary to protect the property rights of others.

Further, any restriction on the right to freedom of expression caused by the prevention of the use of prescribed expressions, or variations thereof, is confined to the very limited circumstance of using the prescribed expression, or variation thereof, in connection with selling insurance cover or any kind of warranty under a scheme relating to domestic building work to which the statutory insurance scheme applies. I consider that this restriction is closely tailored to its purpose of deterring and preventing fraud or other misleading behaviour which may undermine the integrity of the statutory insurance scheme and risk consumers and builders being without the proper insurance. I consider there are no less restrictive means of achieving the purpose of protecting consumers and builders from purchasing insurance covers that renders them at risk.

Finally, I note that any expression to be prescribed will be assessed for compatibility with the Charter through the requirement for the Minister to certify a Human Rights Certificate.

For these reasons, I consider proposed new sections 137ZG(1) and (2) of the Building Act to fall within the ambit of section 15(3) of the Charter as it is reasonably necessary to protect public order and the rights of others. As such, this provision imposes no limitation on the freedom of expression.

The Hon. Nick Staikos MP

Minister for Housing and Building