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2010
LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
CONSTRUCTION OCCUPATIONS LEGISLATION
AMENDMENT BILL 2010
EXPLANATORY
STATEMENT
Circulated by authority of
Andrew Barr MLA
Minister for
Planning
In 1994 the ACT established an energy efficiency rating scheme for
residential buildings.
The ACT House Energy Rating Scheme (ACTHERS)
complemented new local building energy efficiency standards for houses. ACTHERS
assessments rate the theoretical thermal performance of a residence on a scale
of zero to ten.
In 1998 the ACT was the first jurisdiction in the world
to introduce an energy efficiency mandatory disclosure scheme for residential
buildings. Disclosure requirements are contained in Part 3 of the Civil Law
(Sale of Residential Property) Act 2003 (Residential Sales
Act).
Under the Residential Sales Act an Energy Efficiency
Rating (EER) must be declared when residential premises are advertised, or
offered, for sale. Some types of dwellings such as caravans and hostel-style
accommodation are excluded from EER provisions. The EER must also form part of
the contract of sale.
Disclosure of an EER is also required by the
Residential Tenancies Act 1997 when leasing or advertising a rental
property when an EER for the property exists.
Mandatory EER provisions
were introduced to address the lack of energy efficiency information for
potential buyers. ACTHERS is the only legislated scheme in Australia to require
an independent energy efficiency rating. The earliest expected establishment of
a comparable mandatory disclosure scheme in other jurisdictions is the latter
half of 2011.
Energy performance under the Building Code of
Australia
Since the late 1990s the Building Code of Australia (BCA)
has incorporated jurisdictional energy efficiency standards for housing and
since 2003 prescribed national protocols and standards for new dwellings. The
BCA is applied as part of building laws in the ACT through the Building Act
2004.
The BCA provides various methods to assess the energy
efficiency of a dwelling.
However, the requirement under ACTHERS to
provide an EER statement means that most practitioners in the ACT use the
software verification or “energy rating” method.
The
performance equivalent to six stars is now the minimum standard for detached
houses and townhouses (class 1 buildings under the BCA), which increased from a
five star equivalence on 1 May 2010. A similar increase in stringency for
sole-occupancy units in apartment and other buildings (Class 2 buildings and
Class 4 parts of buildings) has also been introduced.
Current regulation of building energy efficiency
assessors
Currently energy efficiency assessors are not licensed in the
ACT.
Section 20A of the Residential Sales Act authorises the ACT
Planning and Land Authority (ACTPLA) to make guidelines for the preparation of
EER statements (the Guidelines).
Assessors preparing energy
efficiency rating statements under the Residential Sales Act must be
registered with ACTPLA. There are currently over 200 registered energy
assessors.
Registered energy efficiency assessors are subject to a code
of practice, as well as the Guidelines, which inform auditing requirements,
protocols for assessing building elements and lodging EER certificates with
ACTPLA.
Assessors for new buildings were previously registered and
subject to the code of practice. Since the removal of EER requirements from
development assessments in March 2008 — in line with national agreements
— practitioners that carry out energy performance assessments on building
plans are not registered.
As most ratings are subsequently used for sale
of properties, EER Guidelines provide some level of coverage for these
assessments. Provisions exist in the Building Act 2004 and the
Construction Occupations (Licensing) Act 2004 (COLA) that require
builders and building certifiers to ensure compliance with the BCA, but at
present there is no mechanism to directly regulate energy
assessors.
Since the introduction of the ACTHERS, government intervention
has been minimal and the approach to assessors predominantly educational. This
approach is no longer viable. Recent initiatives for energy efficiency place
new priorities and pressures on the provision of a highly reliable energy rating
system.
Under current arrangements, there is limited capacity for
government to compel assessors’ compliance with provisions in ACT
legislation for preparation of EERs. There is also no formal complaints
mechanism for consumers to have complaints investigated.
Effect of this Bill
This Bill will utilise the existing regulatory
framework under COLA and the Building Act 2004 to provide suitable
educative and disciplinary for building energy efficiency assessors and
complaints mechanisms for consumers.
The framework for licensing
builders, electricians, plumbers etc that exists in COLA is also suitable for
energy assessors.
The Bill provides for licencing a new occupation under
COLA. The Bill also provides for particular licensing requirements and codes of
practice for energy assessors within COLA itself, rather than creating a
separate occupational Act.
The Bill will only require individual
assessors to hold a licence.
The Bill only prescribes energy assessor
licensing for residential schemes. Separate endorsements will be granted for
each of the software tools a licensee is trained to use, so that licensees may
choose to be endorsed only for the tools they use in practice.
Licensing
of building energy assessors in the ACT will enable assessors to be recognised
under the existing mutual recognition framework. At present, mutual recognition
provides the most appropriate cross-border arrangements as the scope and type of
registration arrangements for assessments differs in each
jurisdiction.
The Bill also introduces provisions to enable future
classes of licence and for expansion of the scope of work to additional
assessments such as water efficiency and appliances.
These provisions
will allow other pre-purchase assessors, such as those who conduct building
inspection reports for sale or purchase, to be regulated if necessary.
Public safety measures
The Bill includes two generic aspects of
regulation to improve agency responses to events that pose a risk to public
safety.
The Bill will authorise the Construction Occupations Registrar to
suspend a licence where there is an issue of public safety has been identified.
The Bill will also authorise relevant regulatory agencies and inspectors to
share information where public safety is at risk.
Building work,
including electrical, plumbing and gas work poses inherent safety risks when the
work is not done according to prescribed standards. The power to suspend a
licence on public safety grounds will enable the Registrar to prevent further
risk to public safety and manage the existing risk as soon as the Registrar
decides that reasonable grounds exist that the conduct of a licence holder is a
risk to public safety. This new power is especially relevant in a context of
building and development moving at rapid pace.
Example one: A licence
holder is authorised to engaged in demolition work that involves the removal of
asbestos. The licence holder is carrying out several demolition jobs and has
several more awaiting commencement.
Building inspectors auditing one of
the practitioner’s jobs ascertain that the licence holder is using
demolition methods inconsistent with the standards for managing asbestos.
Having provided the information to the Registrar (or their delegate) the
Registrar determines that the licence should be suspended so that the licence
holder cannot commence further jobs until the methods are assessed and rectified
and existing jobs inspected.
Example two: A licensed builder specialises
in the construction of dual-occupancy residences. The builder has built seven
such residences, and is building another four. Building inspectors inspecting
one of the buildings under construction find that no fire-wall has been built
between the two occupancies, which is also inconsistent with the building
approval. In this circumstance, the Registrar may determine that the
builder’s licence is suspended in order to inspect the built residences
and prevent the builder from building more dangerous structures.
In
relation to sharing information the context of building and development, there
are a range of specialised regulatory laws and corresponding agencies that deal
with safety issues.
Inspectors enforcing work safety laws, building laws,
gasfitting laws, plumbing laws etc are often confronted with situations that
require multi-disciplinary responses or require other regulators to exercise
their laws.
In most cases, referral or collaboration between agencies
requires sharing information covered by the Privacy Act 1988, such as the
name and address of the owner of a particular site, or individuals that may be
working on a particular site.
In the absence of authorising legislation,
the Privacy Act 1988 requires each case to be assessed against the
Information Privacy Principles.
In some cases time is of the essence and
it is not possible to conduct a full assessment of the nature of the information
being exchanged or affirm the relevant exclusion under the Privacy Act 1988.
In other cases, exchange of information often takes place between
inspectors who have been investigating the same incident but have different
statutory roles. In this situation, there is a strong community expectation
that government agencies would cooperate and collaborate to enforce all relevant
laws. Consequently, it is routinely decided that information should be shared
as a matter of public safety.
Doubt or concern about exchanging
information in these situations can take up valuable time. Likewise, where time
may not be a factor, the impact of doubt means that different cases involving
the same safety issues are treated differently.
For these reasons, the
Bill authorises relevant agencies to exchange information only for the purposes
of exercising their relevant laws where a public safety issue is at stake. The
Bill does not authorise public disclosure of the information.
The
amendment will provide the specified agencies with certainty when coordinating a
response to a threat to public safety that involves a number of inspectorates or
agencies. Dealing with asbestos is an example, as is dealing with building
work that has caused damage to power lines, gas lines etc. Another example
would be the discovery of an unauthorised structure by a building inspector
which has been wired for power and plumbed. Obviously electrical and
plumbing work carried out unlawfully inherently raises safety issues and
requires advice and inspection by other relevant inspectors.
The agencies
or inspectorates contemplated by the Bill are: emergency services, work safety,
dangerous substances, utilities, water, building, electrical, plumbing and
gasfitting.
Human Rights
The Bill’s provision that would allow the
exchange of information between relevant agencies for the purpose of public
safety may engage the right to privacy and reputation under section 12 of the
Human Rights Act 2004.
The collection and exchange of information
by officials of the State about an individual without consent will always
concern their private life and thus falls within the scope of the right to
private life. [Ursula Kilkelly, The Right to Respect for Private and Family
Life, Council of Europe, Germany 2001, p 13.]
However, “[a]ll
persons live in society, the protection of privacy is necessarily relative . . .
the competent public authorities should only be able to call for such
information relating to an individual’s private life the knowledge of
which is essential in the interests of society as understood under the
Covenant”. [International Covenant on Civil and Political Rights, Article
17, General Comment 16, 32nd session 1988, para 7.]
The
Human Rights Act 2004 recognises that some rights are not absolute in a
democratic society and provides for justified limitations on human rights in
section 28. The key criteria for any limitation that can be justified in a
democratic society is set out in section 28(2):
(a) the nature of the
right affected;
(b) the importance of the purpose of the limitation;
(c)
the nature and extent of the limitation;
(d) the relationship between the
limitation and its purpose;
(e) any less restrictive means reasonably
available to achieve the
purpose the limitation seeks to achieve.
In
relation to the nature of the right affected, the right to privacy is
“necessarily relative”. There are a vast array of consentual and
non-consentual disclosures of private information that occur as a normal and
justifiable functioning of a democratic society.
The purpose of the
limitation is public safety. The purpose must be demonstrable to exercise the
power contemplated by the Bill.
The extent of the limitation itself is
restricted to exchange between authorities who regulate relevant legislation
that have public safety elements. The limitation on the right does not extend
to disclosure beyond that circle of agencies nor to any form of public
disclosure not already authorised by law.
There is a direct relationship
between the limitation and purpose as in all cases a place has to be identified
to exercise the relevant laws. In the vast majority of cases individuals must
also be identified (such as owners, lessees, builders etc).
The
Government considers the approach to be the least restrictive means to achieve
the purpose of the provision.
Construction Occupations (Legislation) Amendment Bill 2010
Detail
Part 1 — Preliminary
This is a technical clause that names the short title of the Act. The name of the Act would be the Construction Occupations (Legislation) Amendment Act 2010.
Clause 2 — Commencement
This clause enables the Act to
commence by way of a notice by the Minister after the Act is notified on the
Legislation Register. If the Act is not commenced within six months of
notification, the provisions of the Legislation Act 2001 will
automatically commence the Act.
Clause 3 — Legislation amended
This Bill amends the
legislation listed in (a) to (e).
Clause 4 — Legislation repealed
This clause repeals the
disallowable instrument made under the Civil Law (Sale of Residential
Property) Act 2003. As discussed in the outline, this instrument provided
guidelines for the preparation of energy efficiency rating statements. This
Bill provides for a new means of regulating energy efficiency rating statements.
Consequently, the instrument will no longer be necessary.
Part 2 — Building Act 2004
Clause 5 — Building approval applications — new section
26(2)(g)
Section 26 of the Building Act stipulates what information or
documents must be submitted when applying for a building approval. This clause
would require a energy efficiency certificate to be lodged with the application
if required by Part 8 of the Building Act.
Clause 6 — New section 26(4)
Consistent with clause 5 above,
new section 26(4) provides a definition for ‘energy efficiency
provision’. The definition refers to the in-text definition in new
section 139C(4) discussed under clause 8 below.
Clause 7 — Part 8 heading
This clause re-words the existing
heading for part 8 of the Building Act.
Clause 8 — New division 8.3 — Energy efficiency
certificates
This clause inserts a new division into part 8 of the
Building Act to set out the requirements for energy efficiency
certificates.
New section 139C establishes a statutory framework for when
an energy efficiency certificate must be prepared. Section 139C(1) and (3)
establishes that an energy efficiency certificate must be if prepared
regulations stipulate that compliance with certain energy efficiency
requirements of the Building Act or Building Code of Australia require a
particular form or report or other document.
New section 139C(2)
specifies that an energy efficiency certificate must be prepared by a building
assessor and in accordance with a code of practice and any regulations made by
the Executive.
The Government intends that the Executive may make
regulations for this purpose if necessary.
Section 139C(2) defines
‘code of practice’ as the foreshadowed code of practice under the
COLA. The code of practice is discussed under clause 22 below.
New
section 139D regulates issues of conflict of interest that may arise when
building assessors are placed in a position where they may be preparing an
energy efficiency certificate for building work.
In the process of
lodging a building application an energy efficiency certificate must be prepared
for any relevant building work. An energy efficiency rating statement may be
prepared for any subsequent sale of the property. To enable prospective
purchasers to be confident of the rating standard used for building the property
and any subsequent rating statement, there needs to be transparency about the
process and relationships involved in the preparation of these
documents.
In some cases the building assessor may have a relevant
material relationship or interest in the proposed building eg is working with a
company involved in the design of the building in order to have energy
efficiency aspects of the building considered during the design stage. In these
circumstances, section 139D(2) requires the assessor to disclose this conflict
to the Construction Occupations Registrar. However, if the person is the
certifier for the work, section 139D would prohibit that person from also being
the assessor for that work.
Clause 9 — Dictionary, new definition of energy efficiency
certificate
This clause adds the definition of ‘energy efficiency
certificate’ to the dictionary of the Building Act 2004. The
meaning is set out in new section 139C.
Part 3 — Civil Law (Sale of Residential Property) Act 2003
Clause 10 — Meaning of required documents — section
9(3)
Section 9 of the Civil Law (Sale of Residential Property) Act
2003 stipulates what documents are required for the sale of a property.
Subsection 3 of the Act deals with conflict of interest issues for relevant
reports.
This clause amends subsection (3) to remove the reference to
energy efficiency statements, as the conflict of interest issues will now be
addressed in the foreshadowed amendments to COLA.
Clause 11 — Definitions for part 3 — section 20, definition of
energy efficiency rating guidelines.
As discussed in the outline, these
provisions will now be addressed in the foreshadowed amendments to COLA.
Consequently, this clause omits this section from the Civil Law (Sale of
Residential Property) Act 2003.
Clause 12 — Section 20, definition of energy efficiency rating
statement.
As discussed in the outline, these provisions will now be
addressed in the foreshadowed amendments to COLA. Consequently, this clause
substitutes this section with a new provision that refers to the relevant
provision in COLA.
Clause 13 — Sections 20A and 21
As discussed in the outline,
these provisions will now be addressed in the foreshadowed amendments to COLA.
Consequently, this clause omits these sections from the Civil Law (Sale of
Residential Property) Act 2003.
Clauses 14 and 15 — Dictionary, definitions of energy efficiency
rating guidelines and energy efficiency rating statement
As discussed in
the outline, these provisions will now be addressed in the foreshadowed
amendments to COLA. Consequently, this clause omits these definitions section
from the Civil Law (Sale of Residential Property) Act 2003
dictionary.
Part 4 — Construction Occupations (Licensing) Act 2004
The
amendments to COLA will use the existing regulatory COLA framework to regulate
energy efficiency assessors.
The Bill provides for licensing a new
occupation under COLA, namely building assessors. The amendments also provide
for particular licensing requirements and codes of practice for energy assessors
within COLA itself, rather than creating a separate occupational Act.
Clause 16 — What is a construction occupation? New section
7(ca)
This clause inserts a new construction occupation, namely building
assessor. As discussed in the outline, this occupation may be used in the
future to cover other generic occupations involved in the construction and sale
of residential properties.
Clause 17 — New section 8A
This clause fleshes out the
meaning of building assessor and under subsection (3) gives content to the
meaning by stipulating that ‘building assessment work’ means
preparing and providing energy efficiency certificates and rating
statements.
The effect of clauses 16 and 17 will be to apply the full
effect of COLA to the new occupation class of building assessor. In essence,
individuals who wish to practice the occupation must obtain a licence to operate
in the Territory.
Clause 18 — New section 52A Suspension of licence — public
safety
This clause introduces a provision that will enable the
Construction Occupations Registrar to suspend a licence on grounds of public
safety.
The section provides examples where licences may be suspended under
this provision.
Subsection (1) empowers the Registrar to suspend a
licence if the Registrar decides on reasonable grounds that there is a risk, or
a probability of a risk of death, injury, significant harm to the environment or
significant damage to property.
Section 52A(2) requires the registrar to
notify the affected person, or people, of the conduct which is determined to be
a risk and the nature of the risk the conduct presents. For example, if a
licensed gasfitter has engaged in fitting gas pipes below standard resulting a
significant build up of gas in a residential apartment block, the Registrar must
state the conduct in question and state that it affects the health and safety of
residents and poses a risk of damage to the property.
Once the
notification is given to the licence holder, the licence is
suspended.
Section 52A(3) empowers the registrar to allow the suspended
licence holder to undertake construction work that would satisfy a rectification
order made by the Registrar. To remove any doubt, it is the Government’s
intention that the licence holder would only be able to do work required by the
Registrar under this provision. Taking the example of the gasfitter above, new
section 52A(3) would enable the Registrar to condition the licence suspension to
fix the apartment block in question in accord with a rectification order issued
by the Registrar against the suspended licencee.
Subsections (4) and (5)
enable the Registrar to notify the licence holder using the most expedient
means. If the Registrar notifies the licencee verbally then the Registrar must
follow the verbal notice with a notice in a written form, either in hard copy or
electronically (eg via e-mail).
Clause 19 — Section 53 heading
This clause amends the heading
of section 53 to remove the word ‘automatic’.
Clause 20 — Section 53(1)
This clause re-casts section 53(1)
to account for automatic suspensions and decision-based suspensions. The list
of suspensions includes the new power to suspend under 52A.
Clause 21 — Construction Occupations Registrar — New section
103(2)(ba)
Section 103 of COLA sets out the range of occupations that
inform eligibility to be appointed the Construction Occupations Registrar. This
clause adds the occupation of ‘building assessment’ to that
list.
Clause 22 — New section 104A
New section 104A empowers the
Registrar to approve a code of practice for construction occupations, classes of
occupations and construction services.
A ‘construction
service’ as defined by section 6 of COLA is the doing or
supervision of work in a construction occupation.
The new section
provides the Registrar with the flexibility of drawing upon existing Australian
Standards, codes etc or other laws to form a code of practice.
Subsection
(3) stipulates that any code of practice is a disallowable instrument.
Clause 23 — New parts 11AA and 11AB
This clause inserts new
parts 11AA and 11AB into COLA dealing with information sharing and energy
efficiency rating statements.
New part 11AA enables public safety
agencies to share information as a consequence of a situation, incident or
discovery that is, or presents, a risk to life, health, significant harm to the
environment or significant damage to property.
The Government intends
that this provision contemplates the sharing private information between
relevant agencies listed in new section 123AA when it is necessary to share the
information. The provision is intended to operate to set aside the effect of
the Privacy Act 1988, where the provision is exercised lawfully. The
provision is not intended to authorise public disclosure of private information,
nor sharing information beyond the narrow scope of the provision.
This
provision is not intended to limit the sharing of information between agencies
where the information does not include private or personal information. For
example, the provision is not intended to prevent, or limit, the sharing of
de-identified statistics, technical information, government financial
information etc.
The outline discusses the human rights justification for
this provision.
Section 123AA(1) contemplates information obtained by
public safety agencies because of their statutory roles to regulate safety and
relevant industry.
Section 123AB stipulates the scope of sharing
information between relevant agencies.
The provisions provide a
discretion to agencies by using the term ‘may’, which is defined in
section 146(1) of the Legislation Act 2001:
In an Act or
statutory instrument, the word may, or a similar term, used in relation to a
function indicates that the function may be exercised or not exercised, at
discretion.
Section 123AB authorises a public safety agency to give
information to another public safety information agency on its own initiative,
request information, and provide information upon request. Under subsection (4)
the agency providing the information must be satisfied that the information is
relevant to the exercise of a function or power under the laws administered by
the receiving agency. This includes where the receiving agency may use the
information to satisfy itself as to whether or not the exercise of a power is
required.
For example, an inspector under the Work Safety Act 2008
provides an inspector under the Building Act 2004 with information about
a builder who has engaged in unsafe building work on the basis that the building
inspector has jurisdiction to take further action about the unsafe work. The
building inspector may use the information to establish that the circumstances
warrant no action under the Building Act 2004.
New part 11AB
provides for energy efficiency rating statements.
Energy efficiency
rating statements are prepared for the purposes of selling a residential
property.
New 123AC provides a definition for energy efficiency rating
statement, which references section 123AD.
New section 123AD establishes
a statutory framework for when an energy efficiency statement must be prepared.
Section 139C establishes that an energy efficiency statement if a provision
Territory law requires a statement. The examples cite the Civil Law (Sale of
Residential Property) Act 2003 and the Residential Tenancies Act
1997.
New section 123AD(2) specifies that an energy efficiency
certificate must be prepared by a building assessor and in accord with a code of
practice and any regulations made by the Executive.
The Government
intends that the Executive may make regulations for this purpose if
necessary.
Codes of practice are established by new section 104A
(discussed under clause 22 above).
New section 123AE addresses conflict
of interest issues for building assessors preparing energy efficiency rating
statements.
Section 123AE(1) re-states the conflict of interest
provisions that were embodied in the Civil Law (Sale of Residential Property)
Act 2003 and the Residential Tenancies Act 1997. It is the
Government’s intention that these re-made provisions would be interpreted
in a manner consistent with their antecedents in the Civil Law (Sale of
Residential Property) Act 2003 and the Residential Tenancies Act
1997.
Subsection (2) enables assessors to prepare a statement if
there is a conflict of interests only if the assessor follows the requirements
of subsection (2).
In the circumstance of a conflict of interest, the
statement can only be prepared for new buildings. The statement must be based
on an energy efficiency certificate prepared for the building or proposed
building (discussed under clause 8 above) and be consistent with the statement.
This is so that information in an energy efficiency certificate can be used for
an energy efficiency rating statement to avoid the need for the preparation of
two assessments for the sale of a new building. However, it is intended that
this only apply when the rating and details on which the rating are based are
the same in both documents. The building assessor must also declare the
conflict to the Registrar and give a copy of the declaration to the seller or
lessor.
Clause 24 New part 17
Clause 24 inserts a new transitional part
into COLA to address the transition from the existing regulatory regime into the
foreshadowed regime. The part also addresses the status of old statements and
assessors in the new regime.
New section 161 defines commencement day as
the day the foreshadowed Act commences. See clause 2 above for commencement
provisions.
New section 162 stipulates that section 88 of the
Legislation Act 2001 does not apply. Section 88 states that any
transitional laws that have been made and are later repealed, can still be used
in circumstances relevant to the transitional laws. By negating this provision
of the Legislation Act 2001 the transitional provisions end in total when
they expire. In other words once the provisions expire they cannot be applied
after the expiry date.
New section 163 stipulates that Division 17.3
expires after one year and all of the other divisions in Part 17 expire after
three years.
New Division 17.2 establishes the effect of old energy
efficiency ratings and old energy efficiency rating statements under the new
law.
An old rating is taken to continue as a rating under the Civil
Law (Sale of Residential Property) Act 2003. However, this will only apply
for three years after commencement day, because of the effect of new sections
162 and 163.
An old rating statement is taken to continue as a rating
statement under COLA. However, this will only apply for three years
after commencement day, because of the effect of new sections 162 and
163.
New Division 17.3 provides transitional arrangements for existing
energy assessors who are registered. The provisions enable existing energy
assessors to be eligible and apply for a licence within a year after the
commencement of the foreshadowed Act.
Section 167 defines the existing
energy assessors by reference to the register of assessors recognised by the
instrument made under the Civil Law (Sale of Residential Property) Act
2003.
Section 168 deems existing registered assessors to be licensed
building assessors under COLA following commencement of this foreshadowed Act.
The effect of sections 162 and 163 above mean that this provision only lasts one
year after commencement of the Act.
Section 169 follows the logic of
section 168 in relation to the operation of authorised software. Section 169
deems existing registered assessors licences (which are deemed by section 168)
to be endorsed to allow the assessor to use only the relevant software permitted
under the existing registration.
Clause 25 — Dictionary, new note
The Legislation Act 2001 defines building code as meaning the building code under the Building Act 2004, section 136. This clause introduces a note to the COLA dictionary to reference the meaning of building code to the Legislation Act 2001.
Clause 26 — Dictionary, new definitions
Consistent with the
new provisions to COLA added by this Bill, this clause adds new relevant
definitions.
Part 5 — Construction Occupations (Licensing) Regulation
2004
Part 5 of the Bill amends the Regulations made under COLA.
Clause 27 — Licence applications — section 5(h)
Section
5 of the COLA regulations sets out the requirements for a licence application.
This clause re-casts the requirement to provide the name of the insurer who will
provide insurance for the relevant type of licence. 5(h) would include building
assessors.
Clause 28 — Section 8 heading
This clause amends the heading
for section 8 of the COLA regulations
Clause 29 — Section 8(1)
Section 8 of the COLA regulations
limits the life of a licence under COLA for the occupations mentioned in section
8 to one year. This clause adds building assessors to those occupations.
Clause 30 — Particulars in register — Section
9(1)(c)
Section 9 of the COLA regulations sets out what must be recorded
in the register established under COLA of each licensee. Subsection (c)
requires the relevant insurer to be recorded for the occupations listed. This
clause adds building assessor to the list in subsection (c).
Clause 31 — New section 16B
This clause inserts a new section
into the COLA regulations that stipulates the eligibility requirements for a
person to be licensed as a building assessor.
The applicant must have
adequate insurance and competence in the relevant software to conduct
assessments.
New subsection (2) sets the minimum threshold for what is
adequate insurance.
Clause 32 — New section 21A
This new clause creates a
condition of licence for any class of licence that involves a code of practice
made under COLA. (See clause 23 above).
Clause 33 — New section 31A
This clause empowers the
Registrar to determine that a class of building assessor’s licence must
be endorsed to operate relevant software. It also empowers the Registrar to
stipulate the software in question. Any decision made under subsection (2) is a
notifiable instrument, as required by subsection (3).
Subsection (1)
authorises the Registrar to endorse a building assessor’s licence to
operate stated software, provided the Registrar is satisfied that the licensee
is competent to operate the software in question.
Clause 34 — Consideration for endorsing under sections 30 and 31
— Section 32(1)
Consistent with new section 31A (see clause 33
above) this clause adds new section 31A to the list of endorsement provisions in
section 32. Section 32 sets out the criteria the Registrar must consider when
deciding upon competency of the individual to operate the relevant software.
Clause 35 — New section 37B
This clause introduces a new
section 37B, which creates classes of licence for building assessors as set out
in new part 1.3A. See clause 36 below.
Clause 36 — Classes of construction occupation licence and functions
— Schedule 1, new part 1.3A
This clause introduces a new part to
the schedule of classes of construction occupation licences.
The new
schedule introduces ‘class A’ and ‘class B’ licence for
energy efficiency building assessors. Class B authorises licence holders to
provide energy efficiency certificates and statements on the basis of the plans
of a building. Class A authorises licence holders to provide energy efficiency
certificates and statements on the basis of the plans of a building and on the
basis of on-site inspection of buildings.
Clause 37 — Reviewable decisions — schedule 4, new item
24A
This clause introduces a new item in schedule 4. Schedule 4 lists
the decisions that are amenable to merits review by the ACT Civil and
Administrative Tribunal. This clause adds the decision to refuse to endorse a
licence under new section 31A as a reviewable decision. (See clause 33 above
which explains new section 31A.)
Part 6 — Residential Tenancies Act 1997
Clause 38 — Dictionary, section 2, note 1
This clause updates
the correct reference to the COLA, in relation to energy efficiency rating
statements.
Clause 39 — Dictionary, definition of energy efficiency rating
statement
This clause updates the correct reference to the COLA, in
relation to energy efficiency rating statements.