Tuesday, 20 December 2022

Building and Planning Legislation Amendment Bill 2022

Introduction and first reading

Sonya KILKENNY (Carrum – Minister for Planning, Minister for Outdoor Recreation) (17:01): I move:

That I introduce a bill for an act to amend the Building Act 1993, the Architects Act 1991, the Surveying Act 2004 and the Planning and Environment Act 1987 and for other purposes.

Motion agreed to.

Read first time; under standing order 61(3)(b), ordered to be read second time immediately.

Statement of compatibility

Sonya KILKENNY (Carrum – Minister for Planning, Minister for Outdoor Recreation) (17:03): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Building and Planning Legislation Amendment Bill 2022.

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 and Planning Legislation Amendment Bill 2022. In my opinion, the Building and Planning Legislation Amendment Bill 2022 (Bill), as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.

Overview of the Bill

Parts 2 and 3 of the Bill amend the Building Act 1993, the Architects Act 1991 and the Surveying Act 2004 to –

• support the operation of automatic mutual recognition under the Mutual Recognition (Victoria) Act 1998 with respect to land surveyors, building practitioners, plumbers and architects; and

• enable the Victorian Building Authority to issue a restricted plumbing licence for more than one class or particular type of plumbing work.

Part 4 of the Bill amends the Planning and Environment Act 1987 to increase protection of metropolitan green wedges and amend the distinctive areas and landscapes statement of planning policy endorsement process.

Human rights protected by the Charter that are relevant to the Bill

Clauses 13 and 28 of the Bill provide for recording the details of criminal sanctions on public registers for plumbers and architects. These provisions may engage:

1. the right to privacy in section 13(a) of the Charter which provides that a person has a right “not to have that person’s privacy … unlawfully or arbitrarily interfered with”.

2. the right against discrimination in section 8(2) of the Charter, which provides that “every person has the right to enjoy their human rights without discrimination”. Section 3(1) of the Charter defines discrimination to have the same meaning as in the Equal Opportunity Act 2010 on the basis of an attribute listed in section 6 of the Act. These attributes include a ‘spent conviction’.

While clauses 13 and 28 of the Bill engage the Charter’s rights against unlawful or arbitrary interferences in privacy, any interference is lawful and not arbitrary because it is required to ensure regulators have the necessary information to enforce the law and better protect consumers from unsafe or unfit practitioners.

The information recorded in the registers is also necessary to support the implementation of the Commonwealth’s Automatic Mutual Recognition (AMR) scheme under the Mutual Recognition Act 1992 of the Commonwealth. This scheme excludes certain individuals from an entitlement to automatic deemed registration and imposes certain obligations on local registration authorities. Under AMR, a person is not entitled to automatic deemed registration if they are subject to criminal proceedings in any state in relation to an occupation that covers an activity¹ a person intends to carry out under automatic deemed registration. Additionally, if a person is personally prohibited from carrying out the activity, or an occupation that covers the activity, or is subject to any conditions in carrying out the activity, as a result of criminal proceedings in any state² , they will not be entitled to automatic deemed registration.

Section 42V(2) of the Mutual Recognition Act 1992 of the Commonwealth requires the local registration authority (for example, the Victorian Building Authority or the Architects Registration Board of Victoria) to give to the local registration authority in another state, as soon as reasonably practicable, any information reasonably required about a person using automatic deemed registration – including information relating to a criminal prosecution taken against the person. Clauses 13 and 28 therefore support implementation of this requirement, by enabling details of any criminal sanctions to be recorded in the relevant register. This will ensure practitioners who have received a criminal sanction can be identified if they seek to register in Victoria.

Clauses 13 and 28 of the Bill are consistent with the spent conviction scheme in Victoria under the Spent Convictions Act 2021 and are therefore compatible with the Charter rights against discrimination. The information on the Register of Plumbers and Register of Architects about ‘criminal sanctions’ will not include information about spent convictions.

I am therefore satisfied that the Bill is compatible with the Charter.

The Hon. Sonya Kilkenny, MP

Minister for Planning

1 See section 42D(4)(a) of the Mutual Recognition Act 1992.

2 See section 42D(4)(c) of the Mutual Recognition Act 1992.

Second reading

Sonya KILKENNY (Carrum – Minister for Planning, Minister for Outdoor Recreation) (17:03): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The Victorian Government is committed to improving the efficiency, clarity and operation of the building and planning systems.

The Bill will amend the Building Act 1993, the Architects Act 1991, the Surveying Act 2004 and the Planning and Environment Act 1987 to create the following reforms:

• Strengthen legislative protection of Melbourne’s green wedges;

• Streamline the endorsement process for a distinctive area and landscape;

• Support the implementation of Automatic Mutual Recognition in Victoria; and

• Clarify the power to issue restricted plumbing work licences for private plumbing work.

Protection of Green Wedge Land

The Government is committed to protecting Melbourne’s green wedges for current and future generations. The Bill articulates the Government’s objectives for green wedge land and introduces a legislative requirement for municipal councils to prepare and review Green Wedge Management Plans. Furthermore, the Bill will enable the Minister for Planning to issue directions in relation to the preparation and content of Green Wedge Management Plans, which will provide improved guidance to councils on the structure, form and content of Green Wedge Management Plans.

Distinctive areas and landscapes

Part 3AAB of the Planning and Environment Act 1987 (PE Act), introduced in 2018 enables the Governor in Council, following the recommendation of the Minister for Planning, to declare an area of Victoria to be a distinctive area and landscape. Macedon Ranges, Surf and Bass Coasts and the Bellarine Peninsula have already been declared under this legislation. This experience has repeatedly shown that it is difficult to prepare, consult on and obtain the endorsement and approval of a Statement of Planning Policy within the timeframe specified in the PE Act. The Bill streamlines the process for endorsement by responsible entities of a Statement of Planning Policy for a distinctive area and landscape.

Automatic Mutual Recognition

The Mutual Recognition Act 1992 (Cth) was amended in 2021 to introduce an Automatic Mutual Recognition (AMR) scheme to be adopted by all States and Territories. AMR is intended to create a ‘driver’s licence’ model for occupational licensing, enabling a person to use the occupational licence issued by their home state to carry out the same activities it authorises in other participating Australian jurisdictions.

The Government agreed to participate in the AMR scheme last year. The Bill makes amendments to ensure that important consumer protection requirements that apply to Victorian architects, land surveyors, building practitioners and plumbers also apply to workers using AMR to carry out building and plumbing work in Victoria. The changes enable regulators to regularly check if both Victorian and AMR workers are covered by any required insurance.

Consumers will also benefit from improvements to information on the Victorian Building Authority (VBA) register of building practitioners and plumbers and the register of architects maintained by the Architects Registration Board of Victoria. Consumers will be able to make more informed choices before engaging practitioners, using the register to check if any Victorian or AMR worker they have engaged is appropriately registered for that work.

Restricted Plumbing Licences

Minor amendments are being made to the Building Act to provide certainty regarding the VBA’s continuing ability to issue restricted plumbing licences to authorise the carrying out of multiple classes of plumbing work that is private plumbing work.

I commend the Bill to the house.

David HODGETT (Croydon) (17:03): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Tuesday 3 January.