Northern Territory Explanatory Statements

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BUILDING AMENDMENT (REGISTRATION AND OTHER MATTERS) BILL 2011

8

The proposed Bill also makes some minor amendments to the Building Act in a Schedule to this Bill to reflect current drafting practice.




NOTES ON CLAUSES

Clause 1. Short Title

This is a formal clause which provides for the citation of the Bill.

The Bill when passed will be cited as the Building Amendment (Registration and Other Matters) Act 2011.

Clause 2. Commencement

This clause provides for the commencement of the Act on a day fixed by the Administrator and notified by publication in the Gazette.

Clause 3. Act amended

This clause specifies that this Bill amends the Building Act.

Clause 4. Section 4 amended (Definitions)

Definitions have been included to reflect the amendments of this Bill and to provide further clarification of existing terms not previously defined in the Building Act.

Clause 5. Part 2, Division 5 replaced

This clause replaces existing Division 5 of Part 2. The existing Division is titled ‘General’ and will be replaced with the heading ‘Delegations’. The existing Division only provides for delegation matters and the change to the heading therefore is more appropriate to the subject matter.

The proposed Division will provide for delegations for the Advisory Committee, Practitioners Board and the Appeals Board.

The only other change to the Division is the modernisation of existing section 20 and the correction of a minor error to a cross-referenced section.

The delegation power at section 46A of the Interpretation Act contains other detailed provisions relating to delegation provisions. That section provides that where a power or function is delegated, the power or function when exercised or performed by the delegate shall be deemed to have been exercised or performed by the Minister, or other person (in this case the Director, or a Board). In addition, that section also provides that the power of delegation may not be delegated, and a delegation does not prevent the exercise of a power or the performance of a function (in this case by the Minister, Director, or a Board).

Clause 6. Sections 23 to 24C replaced

This clause inserts proposed section 22A and replaces sections 23 to 24C. Proposed section 22A will provide for the appointment of a nominee by a corporation. The appointment must be made in accordance with the approved form and must be provided to the Building Practitioner’s Board. If the approved form has been completed correctly, the Building Practitioner’s Board will enter the nomination on the Register.
Replaced section 23 relates to the procedure for a person (either an individual or a corporation) to apply to the Building Practitioners Board for registration as a building practitioner in a category other than building contractor. The application must be made in accordance with the approved form.

Replaced section 24 relates to the matters the Building Practitioners Board must have regard to when considering an application by a person (either an individual or a corporation) for registration as a building practitioner in a category other than building contractor.

Replaced section 24A relates to the procedure for a person (either an individual or a corporation) to apply to the Building Practitioners Board for registration as a building practitioner in the category of building contractor. The application must be in accordance with the approved form.

Replaced section 24B relates to the matters the Building Practitioners Board must have regard to when considering an application by a person (either an individual or a corporation) for registration as a building practitioner in the category of building contractor.

There are five substantive changes to the provisions amended by this clause. All other changes to the sections in this clause relate to drafting style and do not alter the operation of the existing provisions. The substantive changes are dealt with below.

The first change relates to the category of building practitioner in all categories other than building contractor. Reference to a ‘nominee’ is now also provided for building practitioner categories other than building contractors in proposed section 24(2)(a). Before commencement of the Bill the term was only used to refer to an individual nominated by a corporation in the category of building contractor.

The second matter relates to the category of building contractors. Prior to commencement of this Bill, a requirement for registration in the category of building contractor is that a director or nominee for which a corporation’s registration is dependent upon, must reside in the Northern Territory. That requirement is proposed to be replaced by the requirement that the director or nominee of the corporation for which the corporation’s registration is dependent upon, is able to provide adequate supervision of the building work carried out by the corporation (proposed section 24B(2)(a)(ii) refers).

The third change is the deletion of the reference to ‘firms’. The removal of the ability to register firms is on the basis that registering a non-legal entity may be misleading, as firms are not a separate legal entity.

The fourth change is the inclusion of a provision that puts it beyond doubt that building contractors must maintain the net financial assets prescribed by regulation, during the entire period of registration. Before the commencement of this Bill, the relevant requirements were contained in a Ministerial determination.

The fifth is the repeal of section 24C. That section dealt with transitional matters for the Building Amendment Act 2004 that commenced on 3 July 2006 and is no longer of effect.

Clause 7. Sections 24F and 24FA replaced

Replaced section 24F relates to the procedure for a person (either an individual or a corporation) to apply to the Building Practitioners Board for renewal as a building practitioner in any category of building practitioner (including building contractors).

The only substantive changes to the provisions is the same as the matters described above in the explanatory notes to clause 6. In summary, those changes are as follows:

· the reference to nominees is extended to all categories of building practitioners;
· the requirement for a nominee or director of a building contractor corporation to reside in the Northern Territory has been replaced with a requirement to provide adequate supervision;
· deletion of reference to firms;
· specific provision included to clarify the financial assets requirement to obtain registration and renewal in the category of building contractor, must be maintained at all times during the period of registration.

All other changes to this provision relate to drafting style only.

The proposed change to existing section 24FA is in relation to drafting style and does not substantively alter the operation of the existing provision. The existing section provides that certain entities or a particular person may be prescribed by Regulations as a source of information that the Building Practitioners Board must have regard to when making a decision regarding an application or renewal for registration.
Clause 8. 24G replaced

It is proposed this clause replace existing section 24G. The proposed provision has been redrafted to ensure the section is properly tied in with sections 24, 24B, and 24F.

Clause 9. Sections 25 and 25A replaced

Existing section 25 relates to the functions that an individual, (as distinct from a corporation) must carry out and certify on behalf of a corporation registered in any category of building practitioner (including building contractor). A corporation by its nature must act through people, even though a corporation is a separate legal entity. This section is to provide guidance about how the functions of a corporation must be carried out and who (being an individual and not a corporation) is required to carry out and certify those functions. It is an offence not to comply with this provision.

The substantive change to this section is the deletion of the provision for ‘firms’ and the inclusion of a reference to a nominee in the category of building practitioner other than building contractors. Before commencement of this Bill, this provision also extended to all building practitioner corporations (including building contractors), accordingly, there is no substantive change with respect to the operation of this section in that regard.

Existing section 25A related to the notification requirements where there has been a change that affects a corporation’s registration only with respect to corporations registered in the category of building contractor. Building contractor corporations were required to notify the Building Practitioner’s Board within 7 days if any of the following events occurred:

· a nominee ceased to act for the corporation, or had his or her registration as a building contractor cancelled, suspended, or not renewed;
· a director of the corporation registered in the category of building contractor ceased to be a director or his or her registration was cancelled, suspended or not renewed;
· a nominee acting for the corporation, or a director registered in the category of building contractor ceased to reside in the Territory.

If the registration for the corporation was dependent on a director or nominee the subject of one of the events above, the corporation was required to give notice immediately (not within seven days).

Proposed section 25A will extend to all building practitioner categories. The other change to this section is the replacement of the requirement to reside in the Northern Territory, with the new requirement that adequate supervision be provided.

This clause further proposes to insert new sections 25B and 25C after replaced sections 25 and 25A.

Proposed section 25B relates to the financial requirements for building contractors. This section gives the Building Practitioners Board the power to require a building contractor to provide evidence that they hold and have maintained the required financial assets (as set out in the Regulations) at any stage during the registration period.

Proposed section 25C provides that it is an offence for a person to perform a function of a building practitioner without the required insurance policy. This section has been created for drafting clarity as the existing offence is located in section 24(5). The proposed drafting ensures that it is clear that the offence relates to registration and renewal due to the proposed location of the offence.

Clause 10. Part 3, Division 3B heading replaced

The proposed change to this heading is to clarify and better reflect the type of matters that may be considered under this Part. Existing section 34VA relates to the Building Practitioners Board’s ability to suspend a practitioner where they no longer meet their registration requirements. The previous heading did not adequately reflect that the Part included such provision.

Clause 11. Section 48B amended

Existing section 48B provides that it is an offence for a building contractor to continue work or to commence certain work unless there is a building contract in relation to the work, and the contract includes any requirements specified by the Regulations.

The proposed change to this provision is to make it clear that the Regulations may provide for the contract to include provisions about progress payments linked to specific stages of certain building work. There are no other substantive changes to this section. There has, however, been a conversion of the penalty from a monetary amount, to a penalty unit. This relates to modernisation and all offence provisions have similarly been converted from monetary values to penalty units in the Schedule to this Bill, to reflect the current practice.

Clause 12. Section 167B inserted

This clause inserts proposed section 167B. That section proposes to enable the Director of Building Control to make guidelines. This will formalise Building Notes and other similar documentation published by the Director of Building Control for providing guidance on the administration of matters arising under the Building Act and Regulations. It could also extend to the provision of guidelines about the standards and tolerances of building work. While the guidelines would not have the force of a code, they could be used as a matter for consideration in legal proceedings where an issue about the standard of work is in question.
Clause 13. Part 18 inserted

This clause inserts Part 18, which deals with transitional arrangements with respect to the commencement of this Bill.

Proposed section 185 makes it clear that despite anything to the contrary in section 12 of the Interpretation Act, these transitional provisions apply. This has been included for drafting clarity as a result of previous judicial comment about where legislation should expressly exclude Interpretation Act savings provisions.

Proposed section 186 provides that the replacement provisions apply to existing applications that have been made before commencement day and have not been decided before that day.

The operation of this transitional provision means that the new provisions apply if the application has been lodged but not yet decided. This means, for instance, that the new provisions that require the applicant to demonstrate adequate supervision in place of the previous requirement for Northern Territory residency, will apply.

Proposed section 187 makes it clear that an individual or corporation registered in the category of building contractor must continue to hold the financial assets specified in the Ministerial determination made under section 24G, in force immediately before commencement of this Bill.

Proposed section 188 provides that for corporations in the category of building contractor registered prior to commencement day, the new supervision requirements for nominees or directors that have replaced the requirement for a director or nominee to reside in the territory, apply. This means that even where the corporation was registered on the basis that a director or nominee of the corporation was required to be resident in the Northern Territory, the new provisions concerning adequate supervision apply in their place.

Proposed section 189 provides that current delegation instruments made before the commencement of this Bill continue in force. This means that this Bill will not affect any current delegations.

Clause 14. Act further amended

This is a formal clause that provides for further amendments to the Building Act in the Schedule to this Bill. The further amendments ensure that current drafting style is used in the Building Act and any inconsistencies are corrected. This includes the conversion of dollar amounts to penalty units in relation to the value of maximum penalties for offences under the Act.

Further changes for the modernisation of the legislation include:

· Inserting conjunctions;
· Replacing gender specific provisions with gender neutralising provisions;
· Replacing other existing language used with terminology that is in accordance with current legislative drafting style, for instance:
o replacing ‘shall’ with ‘must’.
· Replacing the term ‘penalty’ with ‘maximum penalty’;
· The omission of the words ‘unless the contrary intention appears’ from definition sections because of the operation of section 18 of the Interpretation Act;
· The omission of ‘etc’ and ‘&c’., where appropriate, from section headings;
· Replacing ‘and/or’ to ‘or’;

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