Thursday, 1 June 2023
Bills
Building Legislation Amendment Bill 2023
Bills
Building Legislation Amendment Bill 2023
Committed.
Committee
Clause 1 (10:02)
David DAVIS: I just have some comments rather than questions on clause 1, and then we can move to clause 48, because I do not think there are any persons in the chamber wanting to discuss the clauses between.
Just to recap very quickly, this is a bill that we do not oppose. There are many worthy matters in the bill, but there are some rough edges and some problems. I think it is important to look at the context. The Victorian Building Authority and building regulation in this state are at a point of crisis. We have seen the head of the building authority leave and a new one appointed. We have seen a series of issues with that authority. We have also seen Porter Davis and a string of other firms get into trouble in the recent period, and it is clear that the regulation of the building sector in this state is not fit for purpose. So there is a deeper and structural problem which is not fundamentally addressed by this bill. I think it is important to put it in context that there are small changes in this bill, some of which are worthy and some of which we support, and in that sense we are not opposing the bill.
Our amendments, both the ones to clause 48 and the insertion of a new clause, arise from consultations undertaken by the Shadow Minister for Planning David Hodgett and in particular Wayne Farnham with a number of the building sector groups and builders across the state. He has consulted widely. He is of course a builder of 30 years standing and understands the building sector extremely well. The input from the opposition has been to deal with what are perceived to be a number of problems with the bill, noting that there are many good parts to the bill. I do not want to bag the bill completely, but I do not think it gets to full grips with a number of the problems across the sector at the moment. There are problems, which we will come to in clause 48 and which I will outline there. I think it is just worth mentioning the context of our amendments, the fact that we do not oppose the bill overall and the fact that there are some worthy points in the bill. But there is a broader problem with regulation of the building sector, and we will seek to remedy a number of the smaller but still significant points that have been raised with us.
Harriet SHING: I might just respond briefly to Mr Davis’s comments on a number of the things that he has raised in his opening remarks, and then hopefully we can move directly to the amendments proposed by the opposition. This is a bill which sits alongside a broader package of reforms. There is work already underway, including mandatory continued professional development (CPD), trade regulation and a broader package of reforms in response to Porter Davis and the other challenges around liquidity and ongoing operation of building and construction companies. To that end, Anna Cronin has been recently appointed as the CEO of the Victorian Building Authority to drive that performance and culture change that Mr Davis has referred to in the opening remarks that he has made.
Again I would say, in response to the concerns that he has raised more broadly about the industry, that the regulatory system has not been comprehensively examined since the early 1990s, so we are looking at 30 years of change that needs to be implemented as part of not just the legal process within statute but also the regulatory framework. This is where again the capacity for regulation-making processes will be able to address the sorts of issues that Mr Davis has flagged and that are contemplated by the stakeholder responses that he has raised in his opening remarks. This is, to the end that relates to the opposition’s amendment, squarely within the scope of what is occurring within this bill and within the regulation-making capacity that underpins it.
Clause agreed to; clauses 2 to 47 agreed to.
Clause 48 (10:07)
David DAVIS: I move:
1. Clause 48, after line 22 insert –
‘(3) After section 261(1) of the Building Act 1993 insert –
“(2) For the purposes of subsection (1)(ha), the kind of work that a category or class of registered building consultant is authorised to carry out by that registration must not be substantially the same as the kind of work that a category or class of registered building surveyor is authorised to carry out by that registration.”.’.
As I have outlined, Mr Farnham points out and a number of submitters to the opposition point out that there is likely to be confusion with the way the legislation is currently framed, and this should clear up some of that confusion. We are concerned that the arrangements that apply to larger sites will seep down into domestic sites, and we are concerned that there is a lack of clear definition. This amendment will assist with that.
Harriet SHING: The points that Mr Davis has raised relate to the challenges around identifying any overlap and managing that in relation to the system and the regulation framework that operates upon the passage of this bill and as part of broader regulatory reform. The proposal to make the changes around the amendments that Mr Davis has proposed to clause 48 I think are properly and reasonably addressed through a regulation-making process that will consider the kind of work that registered building consultants would be authorised to carry out. In doing so, that will consider any overlap in the terms Mr Davis has contemplated with the authorised activities of other registered practitioners such as building surveyors. That process will note that there are distinct roles of different practitioner types.
To give an example, building consultants – they are intended to provide quality checks at defined stages of a build or to be engaged post occupation to investigate potential defects in the building. That is expected to include people who carry out due diligence inspection work such as fire safety installers and maintenance providers – namely, those who are not engineers or plumbers, who are already subject to a separate system of regulation and licensing requirements, as we all know – disability access consultants and energy efficiency consultants.
Building surveyors play a regulatory role in providing independent oversight of building work. That is to ensure that those building works comply with standards and requirements. The regulatory processes to define the role of building consultants in the way in which it is defined by this bill will avoid an unintended shift of responsibility between practitioners – which in fact goes to the very issue, Mr Davis, that you have raised – but also an additional burden on existing practitioners by requiring them to undertake additional qualifications or to gain multiple registrations to continue performing activities authorised under their existing registration. So it is about a clarity of role and role distinction, about the avoidance of overlap and therefore about a capacity to cover more comprehensively and consistently the various types of work undertaken by building consultants and building surveyors respectively.
David DAVIS: I thank the minister for her explanation, which is of some comfort, but I make three points. I make, first, a generic point on the matter of whether Parliament should be clear in what it says or whether it should be left to regulation. This is a generic discussion, and I happen to believe that Parliament should be clearer and more precise on these things and leave less to regulation. That is the generic frame. The second thing I would say is that we are concerned that there will be a potential union push to use any blurring in this area to push greater control into the domestic sector. So that is the second point. The third point is that even if you did not accept the first point that I have made and you had a different philosophical view and you wanted to have more regulation and less clarity in the chamber and in the legislation, I would argue that the community should be uniquely worried about the building authority and its current abilities. I know there is a new chair, but leaving that aside, the authority has not demonstrated over a long period of time its capacity to implement these things properly and with good outcomes, so that is why we are bringing this amendment. I understand the government may be intending a certain outcome, but that requires us all to have faith in the ability of the building authority to actually promulgate those regulations and get them right. I do not happen to have that faith. I will put that on the record now. I reckon they will botch it, and that is why we are trying to get this clarity.
Harriet SHING: Thanks, Mr Davis, for confirming yet again your optimism in the capacity of broad and widespread consultation and discussion with industry and stakeholders to deliver improvements in a system which has not been the subject of regulatory reform since the 1990s, a period which also included time within which you might have been in a position to address those issues in a then incumbent coalition government. But the current regulatory system lacks the ability to properly manage the level of growth that Victoria has experienced. There was, as you would be aware, following the concerns that were highlighted across a range of really significant and tragic events around compliance, the importance highlighted of creating long-lasting and safe homes and buildings. This was, as we know, something tied directly to the Lacrosse and Neo200 fires, the Grenfell Tower tragedy as well and the ongoing impact of the Victorian Cladding Taskforce and the Commonwealth Building Confidence report.
Following the release of those reports, as you would be aware, Mr Davis, there was a building system review expert panel, which was appointed to lead the building system review that is currently underway. So this, as I flagged in my opening remarks, is about that ongoing change and management of existing challenges whilst also being able to contemplate and respond to future challenges as well. Consistent with previous findings, the building system review expert panel has highlighted those systemic issues that impact upon our building system, and we are committed to delivering that building system providing safe, compliant, durable housing and buildings. That is then underpinned by the need for a workforce that is suitably skilled and experienced and has a really strong and viable system of regulation to enforce compliance. This is where legislative amendments that were recommended by the building system expert panel review are part of this work to reshape the regulatory landscape in Victoria, and we have placed consumer protection very much at the centre of this process, making sure that we have a better measure of integrity in building regulation in Victoria.
To the point that you have raised around stakeholder work that you have undertaken along with your colleagues, we do have a process of formal consultation that will take place with industry and other stakeholders through the regulatory and regulation-making process. So we also need to make sure that we do not ignore the reality that, on the point of residential construction, defects are actually costing us in excess of $675 million per year, and two-thirds of those costs are from apartments. So this is again about widescale cross-system, whole-of-system reform and improvement. It is also about making sure that we build upon the package of reform that, as you are aware, Mr Davis, is already part of the work that we are doing, and that is then part of reaching into the skills qualifications, professional support and regulation of people working in this space. I will leave your comments in relation to worker representation as comment.
Council divided on amendment:
Ayes (13): Matthew Bach, Melina Bath, Jeff Bourman, Gaelle Broad, David Davis, Moira Deeming, Renee Heath, Ann-Marie Hermans, Wendy Lovell, Trung Luu, Joe McCracken, Nicholas McGowan, Evan Mulholland
Noes (21): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Jacinta Ermacora, David Ettershank, Michael Galea, Shaun Leane, David Limbrick, Sarah Mansfield, Tom McIntosh, Rachel Payne, Aiv Puglielli, Georgie Purcell, Samantha Ratnam, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Gayle Tierney, Sheena Watt
Amendment negatived.
David DAVIS: I move:
2. At the end of Clause 48 insert –
‘(4) At the end of section 261 of the Building Act 1993 insert –
“(3) For the purposes of subsection (1)(ha), the kind of work that a category or class of registered site supervisor is authorised to carry out by that registration must not include work that is carried out in connection with domestic building work.”.’.
In the same way as the earlier clause did, the amendment seeks to give clarity and it seeks to leave less to regulation and more decided by the chamber and the legislation in a clear way. This is particularly important to stop intrusion into domestic work. I understand some will have a different view. It is our view – from the work of particularly David Hodgett and Wayne Farnham and the panel that they consulted with – that this amendment improves the bill and provides greater clarity and certainty.
Harriet SHING: The government opposes this amendment on a couple of grounds, and they go directly to what you have just referred to around the consumer protection that is at the heart of this bill. Consumers are inherent in the process of building and development of dwellings and domestic building markets, and as I have stated earlier, more than $675 million sits at the heart of defects in residential buildings each year – and it is two-thirds residential apartments within that $675 million defect bill.
This is about making sure that we have within regulation a space to ensure that we can consider the kind of work that registered site supervisors would be authorised to carry out and related classes of buildings. This is about ensuring detailed consideration of the classes of buildings that site supervisors would be required to be engaged on and also to ensure no unintended consequences from how that work is defined.
I want to give you an example. Excluding domestic building work, as you have proposed within your amendment – and by reference to the comments you have just made in support of it – would also have the effect of excluding oversight of high-risk residential apartment buildings given that domestic building work is associated with homes that are classes 1, 2 and 4 buildings and associated class 10 buildings. That would in fact, through logical extension, weaken the protections for consumers and minimise the oversight of the people carrying out work on those high-risk buildings. On that basis, the government opposes the amendment.
David DAVIS: I will just make one point here: the government has been in power for 20 of the last 24 years. The shambles that is building regulation in this state is entirely of their making. There have been nine years in this recent cycle, but the government has had ample time to deal with the problems with building regulation. As I have said, in general with the bill there are a number of things we agree with, but we think in this area the government has not got the balance right.
Harriet SHING: Far be it from me to allow Mr Davis to have the last word. I will just note that on that there is a broader package of reform already underway, including mandatory CPD and trades registration as well as a broader package of reforms in response to Porter Davis, which you referred to in your opening remarks. Anna Cronin has, as I said earlier, been appointed as CEO of the VBA to drive that performance and culture. And, as I also said earlier, consultation on regulation-making processes will occur through industry and stakeholder engagement. This is about making sure that we bring the entire sector along with us as part of these large-scale changes, reforms and improvements.
David DAVIS: As I indicated, and I will be brief because I think people are here, we have little confidence, even with a change of leadership at the VBA, which we have welcomed because we think the previous leader was not up to it. But the VBA has a history of bad performance and bad implementation, and we have very little confidence in its ability to do this.
Council divided on amendment:
Ayes (13): Matthew Bach, Melina Bath, Jeff Bourman, Gaelle Broad, David Davis, Moira Deeming, Renee Heath, Ann-Marie Hermans, Wendy Lovell, Trung Luu, Joe McCracken, Nicholas McGowan, Evan Mulholland
Noes (21): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Jacinta Ermacora, David Ettershank, Michael Galea, Shaun Leane, David Limbrick, Sarah Mansfield, Tom McIntosh, Rachel Payne, Aiv Puglielli, Georgie Purcell, Samantha Ratnam, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Gayle Tierney, Sheena Watt
Amendment negatived.
Clause agreed to.
New clause (10:31)
David DAVIS: I move:
3. Insert the following New Clause to follow clause 48 –
‘48A New section 261A inserted
After section 261 of the Building Act 1993 insert –
“261A Minister must review the operation of certain regulations
(1) The Minister must review the operation of any regulations made under section 261(1)(ha) for the purpose of ensuring the efficient operation of Part 11.
(2) The Minister must complete a review under subsection (1) within 2 years after those regulations come into operation.”.’.
This new clause seeks to insert a review. The minister must review the operation of certain regulations. The minister must review the operations of any regulations made under section 261(1)(ha) for the purpose of ensuring efficient operation, and that must be completed within two years after the regulations come into operation. We think this is a check. We think it is a control. We actually see that there are a number of problems in this area still, and we think that this is a very thoughtful and sensible way forward. Again, David Hodgett and Wayne Farnham and their panel have put forward this suggested review.
Harriet SHING: I am not sure which panel you are referring to, but we will leave that to one side in the interests of efficiency. The term that you have referred to around review is probably best responded to by the sunset of the regulations that will occur by 2028. That is in line with established regulatory processes, and that process can be used to consider the extent to which the operation of any practitioner registration regulations is having that intended impact and any changes that might be required, which is consistent with the continuous improvement and sector-wide reform which is currently underway, which I have spoken about earlier.
Additional evaluation opportunities include those mid-term evaluations as required for high-impact regulations – and that is, for example, the building regulations – and they will provide opportunities for changes prior to the conclusion of the regulations and consideration of and improvement to regulations in response to evidence and feedback from key stakeholders, which will contemplate those stakeholders you have referred to in earlier remarks, enabling amendments to be made outside formal mid-term and sunset review processes. On that basis we see that that new clause is supernumerary, and we will be opposing it.
David DAVIS: Very briefly, 2028 is a long, long way away, and this sector needs oversight. This is one way of putting oversight in earlier on the implementation of many of these changes.
Council divided on new clause:
Ayes (13): Matthew Bach, Melina Bath, Jeff Bourman, Gaelle Broad, David Davis, Moira Deeming, Renee Heath, Ann-Marie Hermans, Wendy Lovell, Trung Luu, Joe McCracken, Nicholas McGowan, Evan Mulholland
Noes (21): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Jacinta Ermacora, David Ettershank, Michael Galea, Shaun Leane, David Limbrick, Sarah Mansfield, Tom McIntosh, Rachel Payne, Aiv Puglielli, Georgie Purcell, Samantha Ratnam, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Gayle Tierney, Sheena Watt
New clause negatived.
Clauses 49 to 70 agreed to.
Reported to house without amendment.
That the report be adopted.
Motion agreed to.
Report adopted.
Third reading
That the bill be now read a third time.
I wish to thank all stakeholders who have been part of this important work to reform the system as part of a broader package of reforms.
Motion agreed to.
Read third time.
The PRESIDENT: Pursuant to standing order 14.28, the bill will be returned to the Assembly with a message informing them that the Council have agreed to the bill without amendment.