Building, Planning and Heritage Legislation Amendment (Administration and Other Matters) Bill 2022

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Building, Planning and Heritage Legislation Amendment

(Administration and Other Matters) Bill 2022

Introduction Print

EXPLANATORY MEMORANDUM

General

A Bill for an Act to amend the Building Act 1993, the Architects Act 1991, the Heritage Act 2017, the Planning and Environment Act 1987, the Surveying Act 2004, the Domestic Building Contracts Act 1995, the Building and Construction Industry Security of Payment Act 2002, the Victorian Civil and Administrative Tribunal Act 1998, the Sale of Land Act 1962, the Owners Corporations Act 2006, the Cladding Safety Victoria Act 2020 and for other purposes.

Clause Notes

Part 1—Preliminary

Clause 1 sets out the purposes of the Bill, which are—

• to amend the Building Act 1993

• to provide for the appointment of a State Building Surveyor; and

• to provide for the appointment of a Building Monitor; and

• to provide further in relation to the sharing of information and data; and

• to provide for changes to categories of building practitioner; and

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• to insert an offence relating to building practitioners; and

• to require that relevant building surveyors give certain information to persons to whom building permits are issued; and

• to require that certain building work is subject to additional inspection before an occupancy permit is issued for that work; and

• to provide for building manuals to be prepared and updated by owners and updated by owners corporations in respect of certain buildings; and

• in relation to automatic mutual recognition of building practitioners, building employees and plumbers who are registered or licensed in other jurisdictions; and

• to provide for additional purposes for which money may be paid out of the Cladding Safety Victoria account; and

• to make changes to the delegation powers of the Victorian Building Authority (Authority); and

• to provide further in relation to restricted licences for carrying out plumbing work; and

• to make other consequential and miscellaneous amendments; and

• to amend the Architects Act 1991

• to make changes to the governance and procedures of the Architects Registration Board of Victoria; and

• in relation to automatic mutual recognition of architects who are registered or licensed in other jurisdictions; and

• to amend the Heritage Act 2017

• in relation to notices, the publication and inspection of documents and hearings conducted by the Heritage Council; and

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• in relation to nominations; and

• to make general amendments; and

• to amend the Planning and Environment Act 1987 in relation to the protection of metropolitan green wedges and distinctive area landscapes; and

• to amend the Surveying Act 2004 in relation to automatic mutual recognition of surveyors who are registered or licensed in other jurisdictions; and

• to amend the Domestic Building Contracts Act 1995 in relation to the disclosure and sharing of information and data by conciliation officers under that Act; and

• to amend the Building and Construction Industry Security of Payment Act 2002 in relation to the disclosure of information under that Act; and

• to amend the Victorian Civil and Administrative Tribunal Act 1998 in relation to the disclosure and sharing of information and data under that Act; and

• to amend the Sale of Land Act 1962 to insert an offence relating to the provision of an approved building manual to a purchaser of land; and

• to amend the Owners Corporations Act 2006 in relation to the provision of an approved building manual at the first meeting of an owners corporation; and

• to amend the Cladding Safety Victoria Act 2020 to make consequential amendments.

Clause 2 sets out when the provisions of the Bill come into operation.

Subclause (1) provides that Part 1 and Divisions 1 and 3 of Part 10 of the Act come into operation on the day after the day on which the Act receives the Royal Assent.

Subclause (2) provides that, subject to section 2(3), the remaining provisions of the Act come into operation on a day or days to be proclaimed.

Subclause (3) provides that, if a provision referred to in section 2(2) does not come into operation before 1 December 2023, it comes into operation on that day. Subclause (3) allows for a period of 18 months between introduction of the Bill into

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Parliament and the forced commencement of any provisions in the Act that have not yet been proclaimed to commence. This period of time is required for preparation of subordinate legislation to prescribe fees and to support the regulation of certain categories of building practitioner.

Part 2—Amendment of Building Act 1993 in relation to appointment of State Building Surveyor

Clause 3 amends section 3 of the Building Act 1993 which provides for definitions in the Building Act 1993.

Subclause (1) amends the heading to section 3 of the Building Act 1993 to refer to interpretation, in addition to definitions. This clause is consequential upon clause 3(3) which inserts an interpretation provision into the Building Act 1993.

Subclause (2) amends section 3(1) of the Building Act 1993 to insert new definitions of—

binding determination, which means a determination issued under section 206E of the Building Act 1993 by the State Building Surveyor; and

building system, which includes the building and plumbing industries and the building system regulators.

This defined term is used in many of the provisions relating to the Building Monitor under new Division 3A of Part 12 of the Building Act 1993, amongst other provisions in that Act.

The inclusive nature of the definition of building system is intended to capture any other person or body exercising powers or performing functions relevant to, or that may affect a person in, the building industry or the plumbing industry or a building system regulator, if relevant to the provision and the matter at hand.

building system regulators includes all of the following—

• the Authority;

• relevant building surveyors;

• municipal building surveyors;

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• plumbing inspectors appointed under section 221ZZY of the Building Act 1993;

• councils;

• the Building Appeals Board;

• the Architects Registration Board of Victoria;

• the Building Regulations Advisory Committee;

• the Plumbing Advisory Council;

• the Building Monitor;

• the Business Licensing Authority;

• the Director of Consumer Affairs Victoria;

• Cladding Safety Victoria;

• Energy Safe Victoria.

This defined term is used in many of the provisions relating to the Building Monitor under new Division 3A of Part 12 of the Building Act 1993, amongst other provisions in that Act.

plumbing laws has the same meaning as in section 221B;

State Building Surveyor, which means the person appointed under new section 206 of the Building Act 1993 as the State Building Surveyor.

• This clause also inserts definitions of Architects Registration Board of Victoria, Business Licensing Authority, chief dispute resolution officer, Cladding Safety Victoria and Director of Consumer Affairs Victoria.

Subclause (3) inserts new section 3(4) into the Building Act 1993 to provide an interpretation of any reference in the Building Act 1993 to building work or plumbing work having to be carried out, or completed in accordance with, or having to comply with, or not being in breach of a provision of the Building Act 1993, the building regulations, the plumbing laws or the regulations made under Part 12A of the Building Act 1993. Any such reference is to be taken to include a reference to the building work or plumbing work having to be

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carried out or completed in accordance with, or to comply with, or to not be in breach of, that provision as interpreted by any binding determination that applies to that provision.

The referenced laws in quotation marks also have their defined meaning, if any, under the Act.

New section 3(4) specifically refers to "regulations made under Part 12A" because this term is referred to in section 262(ea) of the Building Act 1993 and is read as a requirement of the regulations made under Part 12A as interpreted by a binding determination.

Clause 4 amends section 10 of the Building Act 1993 which provides for transitional arrangements relating to the circumstances when building work must or need not be carried out, or may by agreement be carried out, in accordance with a new or amended building regulation and in accordance with the provisions of any regulations, by-laws, local laws or enactments in force at the material time. Clause 4 amends section 10 to provide for transitional arrangements relating to the circumstances when building work must or need not be carried out, or may by agreement be carried out, in accordance with a binding determination from the date the binding determination comes into effect.

Subclause (1) amends the heading to section 10 to refer to binding determinations.

Subclause (2) amends section 10(1) of the Building Act 1993 to insert references to a binding determination.

Subclause (3) amends section 10(2) of the Building Act 1993 to insert references to a binding determination.

Subclause (4) inserts a reference to a binding determination into section 10(3) of the Building Act 1993.

Subclause (5) inserts a reference to a binding determination into section 10(4) of the Building Act 1993.

Clause 5 amends several offences provided under sections 16 and 16B of the Building Act 1993.

Subclause (1) inserts into section 16(2) of the Building Act 1993 a reference to any binding determination of the State Building Surveyor that applies to the carrying out of building work so as to

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provide it is an offence if a person carries out building work unless the work is carried out in accordance with the Building Act 1993, the building regulations and the building permit issued in relation to that work and any binding determination that applies to the carrying out of that work.

Subclause (2) substitutes into section 16(4A) of the Building Act 1993 references to binding determinations so as to provide that a builder named in a building permit must ensure that the building work to which the building permit applies is carried out in accordance with the Building Act 1993, the building regulations, the building permit and any binding determination that applies to the carrying out of that work.

Subclause (3) inserts new paragraph (d) into section 16B(3) to provide it is an offence if a person who is in the business of building carries out building work if the person knows that the building work is not being carried out in accordance with—any building determination that applies to the carrying out of that work or, as provided under section 16B(3)(a), (b) and (c), is not being carried out in accordance with the Building Act 1993, the building regulations or the building permit issued in relation to that work.

Clause 6 amends section 24(1) of the Building Act 1993, which specifies the grounds on which a building permit must not be issued. This clause substitutes in section 24(1)(a) "Act, the building regulations and any binding determination that applies to the carrying out of that building work" in place of "Act and the building regulations", so as to provide that a relevant building surveyor must not issue a building permit unless he or she is satisfied that the building work and the building permit will comply with this Act, the building regulations and any binding determination of the State Building Surveyor that applies to the carrying out of that building work.

Clause 7 inserts into section 157(b) of the Building Act 1993 a reference to any applicable building determination of the State Building Surveyor so as to provide that if there is a dispute about a building, building work or proposed building work between certain persons specified in section 157(a), and the dispute concerns the application or effect of any provision of the building regulations (within the meaning of section 160 of the Building Act 1993) or whether any provision of the building regulations,

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including any building determination that applies to that provision, is or has been complied with—any of those persons may refer the matter to the Building Appeals Board.

Clause 8 inserts new subsection (5) into section 160 of the Building Act 1993, which enables the Building Appeals Board to determine that a provision of the building regulations does not apply, or applies with modifications or variations, to a building or land specified in an application made to the Building Appeals Board for this purpose. New section 160(5) provides that a determination made by the Building Appeals Board under section 160(2)(b) of the Building Act 1993 in relation to a provision of the building regulations must not be inconsistent with any binding determination that applies to that provision. New section 160(5) is not applicable to a determination of the Building Appeals Board under section 160(2)(a) of the Building Act 1993 that a provision of the building regulations does not apply to a building or land specified in an application made under section 160.

Clause 9 amends section 160A(1) of the Building Act 1993, which allows for certain applications to be made to the Building Appeals Board.

Subclause (1) makes technical amendments to section 160A(1) of the Building Act 1993.

Subclause (2) inserts new subsection (3) into section 160A of the Building Act 1993 to provide that a determination made by the Building Appeals Board under section 160A(1) in relation to a provision of that Act, the building regulations or any document applied, adopted or incorporated by a provision of the building regulations must not be inconsistent with any binding determination that applies to that provision.

Clause 10 inserts subsection (6A) into section 160B of the Building Act 1993, which enables an application to be made to the Building Appeals Board to determine whether an access provision of the building regulations does not apply, or applies with the modifications or variations specified in the application, to a building or land on which a building is to be constructed, specified in the application. New section 160B(6A) provides that a determination of the Building Appeals Board under section 160B(1)(b) must not be inconsistent with any binding

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determination of the State Building Surveyor that applies to that access provision.

New section 160B(6A) is not applicable to a determination of the Building Appeals Board under section 160B(1)(a) that an access provision of the building regulations does not apply to a building, or land on which a building is to be constructed, specified in an application made under section 160B.

Clause 11 substitutes subparagraph (i) of section 179(1)(a) of the Building Act 1993 with a new subparagraph (i) to provide that it is a ground for disciplinary action if a registered building practitioner contravenes a provision of the Building Act 1993 or the regulations including any binding determination of the State Building Surveyor that applies to that provision.

Clause 12 substitutes subparagraph (i) of section 187R(1)(a) of the Building Act 1993 with a new subparagraph (i) to provide that it is a ground for disciplinary action if a licensed building employee contravenes a provision of the Building Act 1993 or the regulations including any binding determination of the State Building Surveyor that applies to that provision.

Clause 13 amends section 203(6) of the Building Act 1993 by inserting "or the State Building Surveyor" after "Advisory Council" for the purpose of providing that that the Victorian Building Authority must not appoint as chief executive officer a person who is appointed as the State Building Surveyor.

Clause 14 inserts new Division 3 into Part 12 of the Building Act 1993 to provide for the appointment, objectives, functions and other matters relating to the State Building Surveyor under new sections 206 to 206E of the Building Act 1993.

New section 206 provides for the Authority, after obtaining the written approval of the Minister, to appoint a natural person, who is an employee of the Authority, as the State Building Surveyor.

New sections 206(1) to (5) specify certain details relating to an appointment of a person as the State Building Surveyor.

New section 206(6) enables the Authority to appoint a natural person, who is an employee of the Authority, as an acting State Building Surveyor for a period of no more than 6 months while there is a vacancy in the office of the State Building Surveyor or

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the State Building Surveyor is on leave or, for any reason, is unable to perform their functions.

New section 206(7) provides that a person appointed to act as the State Building Surveyor under section 206(6) may perform all the functions of the State Building Surveyor.

New section 206(8) gives the Authority power to, in certain circumstances set out in this subsection, and with the Minister's approval, remove the person appointed as the State Building Surveyor or as the acting State Building Surveyor.

New section 206(9) provides that an act or decision of the State Building Surveyor is not invalid merely because of a defect or irregularity in, or in connection with, the appointment of the State Building Surveyor.

New section 206(10) provides that section 206(2), (3), (4), (5) and (9) apply to a person appointed as the acting State Building Surveyor as if that person were the State Building Surveyor.

New section 206A sets out the objectives of the State Building Surveyor.

• The objective under paragraph (a) is to be a primary source of technical expertise on the standards and requirements for building and plumbing work to the building and plumbing industries and the building system regulators to facilitate compliant building and plumbing work and sound building and plumbing practices.

• The objective under paragraph (b) is to encourage improvements to regulatory oversight and practices within the building system to facilitate high quality outcomes in Victoria's built environment. See clause 3(2) of the Bill which inserts a definition of building system that will be inserted into section 3(1) of the Building Act 1993.

• The objective under paragraph (c) is to support improvements to practices within the building surveying profession.

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New section 206B(1) sets out the functions of the State Building Surveyor.

The function under subsection (1)(a) is to prepare and issue binding determinations on interpreting the standards and requirements for building work and plumbing work that are prescribed by the Building Act 1993, the building regulations and the plumbing laws.

The function under subsection (1)(b) is to provide expert technical advice and guidance in relation to building work and plumbing work to building surveyors and persons involved in the building and plumbing industries including by way of publishing guidance materials which may include technical and educative advice.

The function under subsection (1)(c) is to advise the Minister in relation to significant strategic and regulatory issues within the building and plumbing industries.

The function under subsection (1)(d) is to represent the State on bodies developing national building and plumbing standards and requirements.

The function under subsection (1)(e) is to monitor councils' delivery of their building control functions and to provide councils with advice and support on the performance of those functions.

The function under subsection (1)(f) is to support the delivery of the Authority's functions by providing technical advice relating to building work and plumbing work to the Authority. The purpose of this function is for members of the Authority and persons appointed or engaged by the Authority to receive technical advice relating to building work and plumbing work from the State Building Surveyor.

The function under subsection (1)(g) is to engage with building system regulators to enhance the standards and practices within the building and plumbing industries. See clause 3(2) of the Bill for the definition of building system regulators that will be inserted into section 3(1) of the Building Act 1993.

The function under subsection (1)(h) is to monitor developments and trends relevant to building and plumbing standards and building work and plumbing work in the State to support the delivery of the other functions of the State Building Surveyor.

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The function under subsection (1)(i) is to provide training and education on technical matters relating to building work, plumbing work and building surveying work to building surveyors and persons and bodies involved in the building and plumbing industries and on the functions performed by building surveyors. The functions of certain building surveyors are set out in the Building Act 1993 and regulations made under that Act.

The function under subsection (1)(j) is to monitor and report on the performance of the building surveying industry generally including on the carrying out of their regulatory functions under the Building Act 1993 and the regulations made under that Act.

The function under subsection (1)(k) is to carry out any other function conferred on the State Building Surveyor by or under this Act or any other Act.

New section 206B(2) requires the State Building Surveyor, when performing that position's functions under section 206B of the Building Act 1993, to engage closely with building and plumbing industry regulators and other stakeholders in those industries in order to meet the State Building Surveyor's objectives under section 206A of the Building Act 1993.

New section 206C gives the State Building Surveyor the power to do all things necessary or convenient to be done for or in connection the performance of the State Builder Surveyor's functions to enable the achievement of the State Building Surveyor's objectives under the Building Act 1993.

New section 206D enables the State Building Surveyor to delegate, by instrument, any function of the State Building Surveyor to any person appointed or engaged by the Authority under section 204 of the Building Act 1993 (other than as a consultant). The purpose of this provision is to limit the persons to whom the State Building Surveyor can delegate a function to employees of the Authority.

New section 206E(1) enables the State Building Surveyor to issue a binding determination on the interpretation of a technical standard or requirement for building work or plumbing work that is prescribed by the Building Act 1993, the building regulations or the plumbing laws. See clause 3(2) for the definition of binding determination that will be inserted into section 3(1) of the Building Act 1993.

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New section 206E(2) provides that a binding determination must not be inconsistent with the Building Act 1993 or the regulations made under that Act.

New section 206E(3) to (5) provide for the making, coming into effect and expiration, of a binding determination.

Clause 15 amends section 221ZZN of the Building Act 1993, under which the Authority may resolve disputes concerning the interpretation of the plumbing regulations. The term plumbing regulations is defined in section 221ZZM of the Building Act 1993 for the purposes of Division 8 of Part 12A of that Act, which includes section 221ZZN.

Subclause (1) inserts a reference to applicable binding determinations into section 221ZZN(1) of the Building Act 1993 so that a dispute to which section 21ZZN applies may include a dispute about whether any binding determination that applies to a provision of the plumbing regulations is, or has been, complied with.

Subclause (2) inserts a reference to applicable binding determinations into section 221ZZN(2) of the Building Act 1993 so that one or more of the parties referred to in section 221ZZN(1) may apply to the Authority for a declaration as to whether a provision of the plumbing regulations, including any applicable binding determination, is, or has been, complied with.

Subclause (3) inserts subsection (3A) into section 221ZZN of the Building Act 1993 to provide that an application under this section for a declaration must be accompanied by the fee prescribed in regulations.

Clause 16 inserts subsection (1A) into section 221ZZO of the Building Act 1993, under which the Authority may declare that a provision of the plumbing regulations does not apply, or applies with specified variations, to specified plumbing work. New section 221ZZO(1A) clarifies that a declaration of the Authority under this section, that a provision of the plumbing regulations applies with specified variations to specified plumbing work, must not be inconsistent with any binding determination of the State Building Surveyor that applies to that provision.

New section 221ZZZO(1A) is not applicable to a determination of the Authority that a provision of the plumbing regulations does not apply to specified plumbing work.

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Clause 17 substitutes a new paragraph (d) of section 221ZZZG(1) of the Building Act 1993 to provide that it is a ground for disciplinary action if a person who is, or has been, licensed or registered under Part 12A of the Building Act 1993 contravenes a provision of the Building Act 1993 or the regulations including any binding determination of the State Building Surveyor that applies to that provision.

Part 3—Amendment of the Building Act 1993 in relation to appointment of Building Monitor

Division 1—Amendment of the Building Act 1993

Clause 18 inserts into section 3(1) of the Building Act 1993 a definition of Building Monitor, which means person appointed under section 208 of that Act as the Building Monitor.

Clause 18 also inserts into section 3(1) of the Building Act 1993 a definition of domestic building affected party. This defined term means any of the following—

• a person who engages, or proposes to engage, another person to carry out on land owned by a person—

• any work on a home constructed on that land in which the person resides;

• any work in relation to the construction of a home on that land in which the person intends to reside.

• a person who enters into a contract to purchase land from a person who under the contract must engage a person to carry out work in relation to the construction of a home on that land in which the first mentioned person intends to reside. The first mentioned person includes a person who enters into this type of contract relating to land that is a lot of a type referred to in section 9AA of the Sale of Land Act 1962.

• an owner of a home. This definition applies to a person affected by any building work on a home they own, and not only domestic building work (which is a defined term), so that other building work on a home, such as only plumbing or only painting, will be included.

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• an owner of a home who is affected by any building work being carried out on an adjoining property. See section 3(1) of the Building Act 1993 for the definition of adjoining property.

Clause 18 also inserts into section 3(1) of the Building Act 1993 a definition of home, which is given the same meaning that it has in the Domestic Building Contracts Act 1995. Under section 3(1) of that Act, home is defined to mean any residential premises and includes any part of a commercial or industrial premises that is used as a residential premises but does not include certain types of accommodation set out in that definition.

Clause 19 amends section 4 of the Building Act 1993 to insert a new objective of that Act in section 4(h), being to address issues in the building system experienced by domestic building affected parties. See also clauses 3(2) and 18 of the Bill which respectively insert a definition of building system and domestic building affected party into section 3(1) of the Building Act 1993.

Clause 20 inserts section 127AA into the Building Act 1993 to provide a qualified statutory immunity for the Building Monitor and to transfer to the State any liability that would otherwise attach to the Building Monitor but for section 127AA(1).

Clause 21 repeals the definition of home in section 137B(7) of the Building Act 1993 as a consequence of clause 18 of the Bill inserting the same definition of home into section 3(1) of the Building Act 1993.

Clause 22 makes a consequential amendment to section 160(3)(d) of the Building Act 1993 by inserting a reference to the Building Monitor to provide that a public authority, other than the Building Monitor, may make an application under section 160(2) of the Building Act 1993.

Clause 23 inserts a new paragraph (iii) into section 197(ia) of the Building Act 1993 to provide an additional function of the Authority, being to support the Building Monitor in performing the functions of the Building Monitor. An example of this support would be for the Authority to enter into an information sharing arrangement with the Building Monitor under section 259AB of the Building Act 1993 as substituted by this Bill.

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Clause 24 makes a consequential amendment to new section 206(5)(a) of the Building Act 1993 to insert a reference to the Building Monitor in the list of persons who may not be appointed as the State Building Surveyor or an acting State Building Surveyor.

See also clause 14 of the Bill which provides for the appointment of a State Building Surveyor and inserts new section 206(5) into the Building Act 1993 setting out who must not be appointed to that office. Clause 24 will come into effect after clause 14 comes into effect.

Clause 25 inserts new Division 3A into Part 12 of the Building Act 1993. New Division 3A provides for the appointment, objectives, functions and other matters relating to the Building Monitor under new sections 207 to 208Q of the Building Act 1993.

New Subdivision 1 of Division 3A inserts new section 207 to provide for definitions for the purpose of Division 3A.

New section 207 defines, for the purposes of Division 3A, information to include a document or copy of a document.

New Subdivision 2 of Division 3A provides for the appointment of the Building Monitor and includes sections 208 to 208D.

New section 208(1) empowers the Governor in Council to appoint the Building Monitor on the recommendation of the Minister.

New section 208(2) provides for the term for which the Building Monitor holds office, which is specified in the instrument of appointment and must not exceed 5 years.

New section 208(3) provides that the instrument of appointment also sets out the terms and conditions of appointment, which must not be inconsistent with the Building Act 1993.

New section 208(4) provides that the Building Monitor is eligible for re-appointment only once. New section 208(5) provides that the Building Monitor is entitled to the renumeration determined by the Governor in Council.

New sections 208(6) and (7) provide that the Public Administration Act 2004 (other than Part 3, except as provided by section 16 of that Act) applies to the Building Monitor and the Building Monitor is a public entity for the purposes of that Act.

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New section 208(8) provides that the Building Monitor is not a public body within the meaning of the Financial Management Act 1994, despite anything to the contrary in that Act.

New section 208(9) provides that the Building Monitor must not engage in any paid or unpaid employment in the building industry or plumbing industry without the approval of the Minister and must not be appointed to an office, or as a member of any body established, under the Building Act 1993 (other than the Building Regulations Advisory Committee and the Plumbing Advisory Council) or the Domestic Building Contracts Act 1995, the Architects Act 1991 or the Cladding Safety Victoria Act 2020. See also clauses 27 and 28 of the Bill under which the Building Monitor is respectively appointed as a member of the Building Regulations Advisory Committee and the Plumbing Advisory Council.

New section 208A provides for the circumstances when the office of the Building Monitor becomes vacant. The office becomes vacant if the Building Monitor resigns, becomes insolvent under administration, is found guilty or convicted of an indictable offence or is removed from the office.

New section 208B provides for the removal from the office of the Building Monitor. New section 208B(1) empowers the Governor in Council to remove the Building Monitor from the office if, in the reasonable opinion of the Minister—

• the Building Monitor for any reason refuses, neglects, fails or is unable to carry out the functions of the office; or

• the Building Monitor engages in misconduct including when carrying out the functions of the office; or

• a ground for removal of the Building Monitor specified in the instrument of appointment has been established.

New section 208B(2) requires the Minister to lay a full statement of the grounds of removal if the Building Monitor is removed from office under new section 208B.

New section 208C provides for the appointment of an acting Building Monitor. Subsection(1) empowers the Governor in Council to appoint an acting Building Monitor for a term not exceeding 6 months while the office is vacant (new section 208A sets out the circumstances when the office becomes vacant) or

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during any period when the Building Monitor is absent or is unable to perform the functions of the office. Subsection (2) empowers the Minister to appoint an acting Building Monitor for a term not exceeding one month while the office is vacant or during any period when the Building Monitor is absent or is unable to perform the functions of the office. Subsection (3) provides that the Minister may not appoint an acting Building Monitor for consecutive periods of time. Subsection (4) requires the instrument of appointment to specify the period of appointment. Subsection (5) enables an acting Building Monitor to perform of the functions of the Building Monitor. Subsection (6) provides that sections 208(3) and (5) to (9) and 208D apply to the Acting Building Monitor as if that person were the Building Monitor,

New section 208D provides that an act or decision of the Building Monitor is not invalid merely because of a defect or irregularity in, or in connection with, the appointment of the Building Monitor.

New Subdivision 3 of Division 3A of Part 12 of the Building Act 1993 provides for the objectives, functions and general powers of the Building Monitor. It includes new sections 208E to 208I.

New section 208E sets out the objectives of the Building Monitor. These are—

• to improve domestic building affected parties' experiences of the building system by advocating for their interests at a systemic level and providing independent expert advice to the Minister and to persons and bodies involved in the building system; and

• to create a central point for the identification of critical and systemic issues that affect domestic building affected parties; and

• to empower domestic building affected parties by promoting awareness of systemic issues that relate to the building industry, the plumbing industry and building system regulators and options to address any such issues.

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The provisions for these objectives use several defined terms that clauses 3(2) and 18 of the Bill insert into section 3(1) of the Building Act 1993, being building system, building system regulators and domestic building affected party.

New section 208F sets out the functions of the Building Monitor, which are—

• to advise and make recommendations to the Minister on systemic issues and risks that affect domestic building affected parties; and

• to report on research conducted on the nature of specific systemic issues that affect domestic building affected parties; and

• to advocate on behalf of domestic building affected parties as a cohort at a system-wide level on issues or matters affecting domestic building affected parties that require reform; and

• to collect and analyse information and data on the systemic issues that affect domestic building affected parties; and

• to monitor improvements to domestic building affected parties' experiences as a result of legislative reform; and

• to develop and promote educational materials and strategies in order to reduce consequences for domestic building affected parties; and

• to engage with all relevant persons and bodies involved in or performing functions in the building system; and

• to support any work that assists in the achievement of the Building Monitor's objectives; and

• to carry out any other function conferred on the Building Monitor under this Act.

The provisions for these functions use the defined terms, building system and domestic building affected party, which clauses 3(2) and 18 of the Bill respectively insert into section 3(1) of the Building Act 1993.

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New section 208G gives the Building Monitor the power to do all things necessary or convenient to be done for or in connection the performance of the Building Monitor's functions to enable the achievement of the Building Monitor's objectives under this Act.

Section 208G(2) provides that, in exercising the Building Monitor's powers, the Building Monitor must comply with any relevant requirements specified by or under any other Act. Examples of such requirements include the Information Privacy Principles set out in Schedule 1 of the Privacy and Data Protection Act 2014 and the De-Identification Guidelines issued by the Chief Data Officer under section 33 of the Victorian Data Sharing Act 2017. These requirements are relevant to the Building Monitor's functions of gathering information and data and publishing information and data in the Building Monitor Issues Report.

New section 208H empowers the Building Monitor to enter into agreements or arrangements for the use of the services of any staff or contractors of the Department so that the Building Monitor can carry out its functions. See also clause 31(1) of the Bill which inserts into section 3(1) of the Building Act 1993 a definition of Department to mean the Department of Environment, Land, Water and Planning.

New section 208I gives the Building Monitor a power to delegate any function, power or duty to a person employed by the Department under Part 3 of the Public Administration Act 2004.

New Subdivision 4 of Division 3A of Part 12 of the Building Act 1993 provides for the Building Monitor's strategic plan under new section 208J.

New section 208J(1) requires the Building Monitor to prepare a strategic plan for the Building Monitor's term of appointment within 4 months of being appointed for the first time or, if appointed for a second time, within 6 months of being appointed. The Building Monitor must submit the strategic plan to the Minister for approval. Section 208J(2) sets out the required contents of the strategic plan, which are—

• a vision statement;

• a mission statement;

• the values of the Building Monitor;

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• a description of strategic initiatives to be taken by the Building Monitor to enable the Building Monitor to meet the Building Monitor's objectives;

• information on how the Building Monitor intends to evaluate whether the objectives of the Building Monitor are met;

• any other goals to be met, or strategies to be taken, by the Building Monitor as required by the Minister from time to time.

New section 208J(3) provides that the Minister may either approve a strategic plan or ask the Building Monitor to re-submit an amended plan. Section 208J(4) requires the Building Monitor to publish the approved strategic plan on the Monitor's website.

New section 208J(5) provides that, despite section 208J(1), a strategic plan approved by the Minister remains in force until the Minister approves a later strategic plan. The purpose of section 208J(5) is to ensure a strategic plan remains in effect during the period when a Building Monitor prepares a strategic plan for a second term of appointment in accordance with subsection (1). Subsection (5) will also keep an earlier strategic plan in effect for any appointment of a Building Monitor after the first appointment under new section 208 of the Building Act 1993 until the earlier plan is replaced by a later approved strategic plan.

Subdivision 5 of new Division 3A of Part 12 of the Building Act 1993 provides for the Building Monitor's information gathering powers. It includes new sections 208K to 208M. See also new section 207 of the Building Act 1993 (inserted by clause 25 of the Bill) which provides a definition of information to include a document or a copy of a document.

New section 208K provides for the Building Monitor to request the provision of information or data from certain persons listed under subsection (3). Subsection (1) provides that, if the Building Monitor reasonably believes that a person or body specified in subsection (3) has information (including personal information) that is relevant to the Building Monitor's functions, the Building Monitor may, after consulting with that person or body, give that person or body a notice requiring the provision of information or date specified in the notice. Subsection (2) provides that a person or body who receives a notice under

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subsection (1) is authorised to provide the information, and must provide the information within the time agreed with the Building Monitor. Under subsection (2), the information and data must also be provided in the format that is specified in the notice or as agreed with the Building Monitor and it must be comprehensive and relevant to the request set out in the notice. Subsection (3) specifies the following persons and bodies from whom the Building Monitor can require the provision of information or data under subsection (1)—

• the Authority;

• the Architects Registration Board of Victoria;

• Cladding Safety Victoria;

• the chief dispute resolution officer;

• the Director of Consumer Affairs Victoria;

• a council;

• the Secretary to the Department (see also the definition of Department that clause 31(1) of the Bill will insert into section 3(1) of the Building Act 1993);

• the Secretary to the Department of Justice and Community Safety;

• VCAT;

• any other prescribed person or body.

New section 208K(4) provides that in this section, information or data that VCAT may be requested to provide to the Building Monitor under subsection (1), is limited to information or data that is prescribed for the purposes of section 38AA of the Victorian Civil and Administrative Tribunal Act 1998.

New section 208L prohibits the Building Monitor from publishing any personal information or data or commercially sensitive information or data unless it has first been de-identified or aggregated with similar information or data (as the case requires) before it is published.

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New section 208M provides that it is offence for the Building Monitor or any person assisting or acting on behalf of the Building Monitor to use or disclose information (including personal information) or data obtained in the course of performing the Building Monitor's functions under new Division 3A of Part 12 of the Building Act 1993 unless—

• the use or disclosure of the information or data is for the purposes of performing the Building Monitor's functions under the Building Act 1993; or

• the information or data is shared under an information sharing arrangement under section 259AB of the Building Act 1993 (refer to clause 57 of the Bill); or

• the disclosure of the information or data is required or permitted under another Act.

This offence is subject to a penalty of 60 penalty units. New section 208G(2) also applies to how the Building Monitor uses or discloses information or data under section 208M.

New Subdivision 6 of Division 3A of Part 12 of the Building Act 1993 provides for the establishment of a Building Monitor Reference Group. It includes new sections 208N and 208O.

New section 208N(1) provides that the Minister may establish a Building Monitor Reference Group (the Group) which must be comprised of not less than 5 members including the Building Monitor. Subsection (2) sets out the purposes of the Group, which are to provide information and advice to the Building Monitor concerning systemic issues and other matters facing, or experienced by, domestic building affected parties. Subsections (3), (4) and (5) provide that the chair of the Group is the Building Monitor and specify who must be, and must not be, appointed as the other members of the Group. Subsections (6) and (7) provide that a member of the Group may be appointed for a period not exceeding 2 years, to be specified in the instrument of appointment, and that a member of the Group may be reappointed. Subsections (8) and (9) provide for the other terms and conditions of appointment of the members of the Group, also to be specified in the instrument of appointment. Subsection (10) provides that the chair of the Group may determine the terms of reference and the procedures of the Group including how often the Group meets. Subsections (11) and (12) provide for the resignation or removal of a member of the Group.

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New section 208O provides for a review of a Building Monitor Reference Group (the Group) established under new section 208N of the Building Act 1993. Under subsection (1) the Minister must ensure that a review is undertaken regarding the purposes of the Group and the criteria for membership of the Group. Under subsection (2) the Minister must ensure that the review is undertaken within 3 years after the Group is established and that a report of the review is prepared.

New Subdivision 7 of Division 3A of Part 12 of the Building Act 1993 provides for the Building Monitor Issues Report under section 208P.

New section 208P provides that the Building Monitor must prepare an annual Building Monitor Issues Report (the Report) within the first year of the Building Monitors' appointment and for every subsequent year of appointment, in accordance with this section. Subsection (2) provides that, during preparation of the Report, the Building Monitor must consult with the persons specified in that subsection. Subsection (3) provides that, in the Report, the Building Monitor—

• must specify the systemic issues that affect domestic building affected parties that have been identified by the Building Monitor; and

• may advise and make recommendations to the Minister on ways to address the issues that affect domestic building affected parties identified in the Report; and

• must specify the Monitor's methods and frequency of consultation with domestic building affected parties and (subject to sections 208L and 208M) the information or data relied on by the Building Monitor to inform the findings and any recommendations contained in the Report; and

• must include—

• a summary of the Building Monitor's findings stemming from the Building Monitor's research;

• when and to whom a notice under section 208K(1) was given and the type of information or data required under the notice;

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• whether the Building Monitor is a party to any information sharing arrangement under section 259AB or any other information or data collection or sharing arrangements or agreements;

• details of progress made against the strategic plan referred to in Subdivision 4 of new Division 3A (refer to new section 208J);

• a summary of all activities conducted by the Building Monitor.

Subsection (4) provides for publication of the Report and requires the Building Monitor to give a written notice to each person or body that is subject to a recommendation in the Report, to advise the person or body of that recommendation and the requirement under subsection (5) to respond to the Building Monitor within the required time. Subsection (5) requires a person or body who receives a notice under subsection (4) to provide a written response, addressing specific matters, to the Building Monitor within 6 months after the publication of the Report.

New Subdivision 8 of Division 3A of Part 12 of the Building Act 1993 provides for a review of the office of the Building Monitor under new section 208Q.

New section 208Q provides that the Minister must ensure that a review is undertaken within 3 years after the first Building Monitor is appointed to determine whether there is an ongoing need for the office of the Building Monitor. Subsection (2) provides that further reviews must be undertaken by the Minister within 6 years after the first review is completed. Subsection (3) provides that the Minister must ensure that a copy of a review is laid before each House of Parliament within 7 sitting days of that House after the review is completed.

Clause 26 makes a consequential amendment to section 259AB(7) of the Building Act 1993 to include the Building Monitor in the definition of relevant agency for the purpose of being a person with whom the Victorian Building Authority can enter into an information sharing arrangement under section 259AB of the Building Act 1993

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See also clause 57 of the Bill which substitutes a new section 259AB of the Building Act 1993. Clause 26 will come into effect after clause 57 comes into effect.

Clause 27 amends section 210 of the Building Act 1993, which provides for the appointment of members of the Building Regulations Advisory Committee. Clause 27 substitutes a new section 210(2)(n) of the Building Act 1993 to provide that one of the members must be the Building Monitor, or an employee of the Department nominated by the Building Monitor. The Building Monitor or nominee will replace a person who (under old section 210(2)(n)), in the Minister's opinion, is able to represent the interests of users of the services of building practitioners.

Clause 28 amends section 211B of the Building Act 1993, which provides for the appointment of members of the Plumbing Advisory Council. Clause 28 substitutes a new section 211B(2)(k) of the Building Act 1993 to provide that one of the members must be the Building Monitor, or an employee of the Department nominated by the Building Monitor, as a member of the Plumbing Advisory Council. The Building Monitor or nominee will replace a person who (under old section 211B(2)(k)) may be chosen by the Minister to represent the interests of consumers.

Division 2—Consequential amendments to Other Acts

Clause 29 inserts section 52I(2)(da) into the Domestic Building Contracts Act 1995. Section 52I provides for how a conciliation officer or an assessor under that Act must not disclose, or may disclose information obtained in the course of carrying out a function under Part 4 of that Act. New section 52I(2)(da) provides that a conciliation officer may disclose such information if the disclosure is made to the Building Monitor in response to a notice given by the Building Monitor to the chief dispute resolution officer under new section 208K of the Building Act 1993;

Clause 30 substitutes section 38AA of the Victorian Civil and Administrative Tribunal Act 1998 to provide that it is a function of the Victorian Civil and Administrative Tribunal (Tribunal)—

• to disclose information or data of a prescribed class of information or data to the Authority or a relevant agency in accordance with an information sharing

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arrangement under 259AB of the Building Act 1993 entered into by the Tribunal; and

• to provide information or data of a prescribed class of information or data to the Building Monitor, which is required by the Building Monitor under a notice under section 208K(1) of the Building Act 1993.

See also clause 64(2) of the Bill which inserts new section 38AA into the Victorian Civil and Administrative Tribunal Act 1998. Clause 64(2) will come into effect before clause 30 of the Bill comes into effect.

Part 4—Further amendments to the Building Act 1993 and Other Acts

Division 1—Amendment of the Building Act 1993

Clause 31 amends section 3(1) of the Building Act 1993, which provides for definitions.

Subclause (1) inserts definitions of approved building manual, Department, land affected by an owners corporation and personal information.

Subclause (2) inserts into the definition of building practitioner in section 3(1) of the Building Act 1993 new paragraph (d) to provide that a building consultant is a category of building practitioner.

Subclause (3) substitutes paragraph (e) the definition of building practitioner in section 3(1) of the Building Act 1993 to provide that a building designer is a category of building practitioner. Subclause (3) also inserts a note under paragraph (e) to explain that the category of building practitioner previously described as draftsperson who carries on a business of preparing plans for building work or preparing documentation relating to permits or permit applications is renamed by the Bill as building designer. The note also directs the reader to the relevant transitional and savings provisions in new section 285 of the Building Act 1993.

Subclause (4) inserts into the definition of building practitioner in section 3(1) of the Building Act 1993 new paragraph (ga) to provide that a site supervisor is a category of building practitioner.

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Subclause (5) substitutes paragraph (h) the definition of building practitioner in section 3(1) of the Building Act 1993 to provide that a project manager is a category of building practitioner.

Subclause (6) inserts a note at the foot of the definition of building practitioner to explain that the category of building practitioner previously described in paragraph (h) as a person responsible for a building project or any stage of a building project and who belongs to a class or category of people prescribed to be building practitioners is renamed by the Bill as project manager. The note also directs the reader to the relevant transitional and savings provisions in new section 285 of the Building Act 1993.

Subclause (7) amends paragraph (a) of the definition of relevant building surveyor in section 3(1) of the Building Act 1993 as a consequence of clause 36 of the Bill which inserts new section 36 into the Building Act 1993 to provide for certain inspections of certain building work or documentation by municipal building surveyors. Subclause (7) clarifies that the definition in paragraph (a) of relevant building surveyor does not apply in relation to an inspection under new section 36 of the Building Act 1993.

Clause 32 inserts new section 17A into the Building Act 1993 to provide for information statements to be given by relevant building surveyors in certain circumstances to be prescribed in regulations. New section 17A(1) provides that new section 17A applies if a person has applied to a building surveyor for the issue of a building permit for building work in relation to a building of a prescribed class of building. New section 17A(2) requires that a relevant building surveyor must, within 10 working days after issuing a building permit referred to in subsection (1), give an information statement to the owner of the building or the land. The information statement must be in the prescribed form and manner and contain the prescribed information. Examples of a prescribed manner is to specify a minimum font size of text or print and languages. Subsection (2) also provides for a penalty of 60 penalty units if a relevant building surveyor to whom section 17A applies fails to comply with subsection (2).

Clause 32 also inserts a note at the foot of section 17A to direct the reader to the relevant transitional and savings provisions in new section 285 of the Building Act 1993.

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Clause 33 makes consequential amendments to the heading to section 18D and to section 18D(2) of the Building Act 1993, to omit "of Environment, Land, Water and Planning" as a consequence of clause 31(1) of the Bill inserting a definition of Department into section 3(1) of the Building Act 1993. The new definition of Department will mean the Department of Environment, Land, Water and Planning.

Clause 34 amends section 21 of the Building Act 1993, which provides for occupancy permits.

Subclause (1) makes a consequential amendment to section 21(1)(c) as a result of subclause (2).

Subclause (2) inserts new paragraph (c) into section 21(1) to provide that the relevant building surveyor must specify in a building permit whether a draft building manual must be given to the relevant building surveyor with the application for any required occupancy permit. See also clauses 37 and 38(3) of the Bill regarding building manuals.

Clause 35 makes a consequential amendment to section 24(4A) of the Building Act 1993 to omit "of Environment, Land, Water and Planning" as a consequence of clause 31(1) of the Bill inserting a definition of Department into section 3(1) of the Building Act 1993.

Clause 36 inserts new sections 35C and 36 into the Building Act 1993 to require a municipal building surveyor to cause an inspection of prescribed building work to be carried out and specify the circumstances when this requirement applies.

New section 35C(1) provides that the owner of a building or land in respect of which a building permit has been issued for building work of a prescribed class of building work to be carried out in or on that building or land must—

• give a notice to the relevant council in the prescribed form by a prescribed time before the building work reaches completion; and

• ensure that the notice is accompanied by the prescribed fee (if any).

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See also clause 58(3) of the Bill which amends section 261(1)(l) of the Building Act 1993 to make regulations for or with respect to expenses incurred by persons and bodies providing services or work under the Building Act 1993 and the timing and manner of payment of those fees.

New section 35C(1) also provides a penalty of 120 penalty units, in the case of a natural person, and 600 penalty units, in the case of a body corporate, if section 35C(1) is not complied with. A note at the foot of section 35C(1) directs the reader to the relevant transitional and savings provisions in new section 285 of the Building Act 1993.

New section 35C(2) provides that, after receiving a notice under section 35C(1) in relation to building work, the relevant council must ask the municipal building surveyor for that council to cause a type of inspection described in section 36(1)(a) to be carried out.

New section 36 provides for the carrying out of an inspection and related requirements.

New section 36(1) provides for different types of inspection. Specifically, it provides that, upon receiving a request from a council under section 35C(2), the municipal building surveyor must, within a prescribed period of time after the request—

• cause one of the following to be carried out—

• an inspection of any or all of the building work; or

• an inspection of the prescribed documentation relating to any or all of the building work (related documentation); or

• both inspections under section 36(1)(a)(i) and (ii) in respect of any or all of the building work; and

• ensure that the person who carries out the inspection in relation to the building work or related documentation is not the relevant building surveyor who issued the building permit for the building work; and

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• determine whether any item of building work or related documentation inspected is non-compliant with any prescribed standard or requirement that applies to that building work, including any binding determination that applies to the standard or requirement; and

• prepare a report that includes the prescribed information in relation to the inspection and any determination made under section 36(1)(c) and the reasons for making the determination; and

• give a copy of the report to the relevant building surveyor, the Authority, the builder named in the building permit for the building work and the owner of the building to which the building work relates.

New section 36(2) provides that a determination by the municipal building surveyor that an item of building work or related documentation is non-compliant with a standard or requirement referred to in section 36(1)(c) is taken to be a decision for the purposes of Part 10 of the Building Act 1993. Part 10 of the Building Act 1993 provides for the Building Appeals Board and its jurisdiction.

New section 36(3) provides that section 35B of the Building Act 1993 applies to section 36 as if—

• a reference in section 35B to a "relevant building surveyor" is taken to be a reference to a "municipal building surveyor"; and

• a reference in section 35B to an "inspection under section 34 or 35" is taken to be a reference to "an inspection under section 36(1)(a).

The purpose of new section 36(3) is to provide that a municipal building surveyor must not cause a person to carry out an inspection under section 36 on behalf of the municipal building surveyor unless the person is registered as a building surveyor or a building inspector under Part 11 of the Building Act 1993 and the person's registration authorises the carrying out of that inspection; or in the case of an inspection that is of a prescribed class of inspection, the inspection is carried out by a person of a prescribed class of person.

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Clause 37 inserts new sections 41A and 41B into the Building Act 1993 relating to building manuals.

New section 41A(1) provides that a person referred to in section 41(a) of the Building Act 1993, who intends to apply for an occupancy permit in respect of the construction of a new building of a prescribed class of building, must prepare a draft building manual for the building. It also requires that the draft building manual must be prepared in accordance with the regulations and ensure that it accompanies the application for an occupancy permit. A note at the foot of subsection (1) directs the reader to the relevant transitional and savings provision that relates to this subsection in section 285.

New section 41A(2) provides that if the construction of a building referred to in section 41A(1) has been carried out under more than one staged permit, the requirement under section 41A(1) applies only in respect of the application for the final occupancy permit.

New section 41B(1) provides that the relevant building surveyor may approve a draft building manual accompanying an application for an occupancy permit if the relevant building surveyor is satisfied that the draft building manual meets all the requirements prescribed in the regulations for preparation of the draft building manual.

New section 41B(2) requires a relevant building surveyor to record their approval of a building manual in the approved building manual.

New section 41B(3) requires a relevant building surveyor to give a copy of an approved building manual to the applicant for the occupancy permit when the relevant building surveyor issues the occupancy permit to the applicant.

New section 41B(4) provide that if the applicant for the occupancy permit is not the owner of the building to which the approved building manual relates, the applicant must give the copy of the approved building manual to that owner.

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Clause 38 amends section 44 of the Building Act 1993, which provides for refusal of an application for an occupancy permit.

Subclause (1) inserts new section 44(ab) to provide that the relevant building surveyor must not issue an occupancy permit referred to in section 35C(1) unless the relevant building surveyor is satisfied of all of the following—

• the municipal building surveyor has under section 36(1)(a) caused an inspection of the building work or related documentation or both to be carried out;

• the municipal building surveyor has given a report on the inspection to the relevant building surveyor in accordance with section 36(1)(e)(i);

• if the report contains details of any building work or related documentation that is non-compliant with a standard or requirement referred to in section 36(1)(c), the non-compliant building work or related documentation has been rectified to the satisfaction of the relevant building surveyor.

See also new section 36(1)(a)(ii) of the Building Act 1993 (inserted by clause 36) for the meaning of related documentation.

Subclause (2) makes a consequential amendment to section 44(b) of the Building Act 1993.

Subclause (3) inserts new paragraph (c) into section 44 to provide that the relevant building surveyor must not issue an occupancy permit in the case of an application described in section 41A(1) if the relevant building surveyor has not approved the draft building manual required to accompany the application.

Clause 39 inserts new sections 44A to 44D into the Building Act 1993 to provide for several offences relating to building manuals.

New section 44A provides that an applicant for an occupancy permit who is given a copy of an approved building manual for a building on land affected by an owners corporation by the relevant building surveyor under section 41B(3) of the Building Act 1993, must give the copy of the approved building manual to the owners corporation for the building at the first meeting of the owners corporation (within the meaning of section 66 of the Owners Corporations Act 2006). This section also provides a

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penalty of 60 penalty units, in the case of a natural person, and 300 penalty units, in the case of a body corporate, for this offence.

New section 44B provides that an owners corporation that is given a copy of an approved building manual under section 44A by an applicant for an occupancy permit must keep and update the approved building manual in accordance with the regulations. This section also provides a penalty of 300 penalty units for this offence.

New section 44C provides that an owner of a building that is on land not affected by an owners corporation who has been given a copy of an approved building manual by a relevant building surveyor under section 41B(3) or (4) or by a person from whom the owner purchased the land, must keep and update the approved building manual in accordance with the regulations. This section also provides a penalty of 60 penalty units, in the case of a natural person, and 300 penalty units, in the case of a body corporate, for this offence.

New section 44D provides that a person who prepares a draft building manual or any updates to an approved building manual must not knowingly or recklessly include false or misleading information in the draft building manual or the updates to the approved building manual. This section also provides a penalty of 60 penalty units, in the case of a natural person, and 300 penalty units, in the case of a body corporate, for this offence.

Clause 40 makes a consequential amendment to section 76(c) of the Building Act 1993. It also inserts new section 76(d) into the Building Act 1993 to provide that a private building surveyor may be appointed to carry out the function under the Building Act 1993 of the approving of draft building manuals under section 41B(1) of the Building Act 1993.

Clause 41 inserts new section 128A into the Building Act 1993 to provide that a relevant building surveyor is not liable for anything done or omitted to be done in good faith in approving a draft building manual under section 41B(1) of the Building Act 1993.

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Clause 42 inserts new section 138B into the Building Act 1993 to provide that an owner of a building or part of a building or the builder named in a building permit for the building work, to which new section 35C of the Building Act 1993 applies, may appeal to the Building Appeals Board against a determination under section 36(1)(c) of the Building Act 1993 that the building work in relation to a building or part of a building, or related documentation , is non-compliant with a standard or requirement that applies to that building work or related documentation. See also new section 36(1)(a)(ii) of the Building Act 1993 (inserted by clause 36) for the meaning of related documentation.

Clause 43 substitutes new section 169D for sections 169D and 169E of the Building Act 1993. New section 169D(1) provides for an offence whereby a person must not carry out work that is of a kind prescribed to be carried out by a category or class of building practitioner (other than a builder) unless the person is registered under this Part in that category or class of building practitioner and the registration authorises the carrying out of that kind of work. New section 169D also provides a penalty for this offence of 500 penalty units, in the case of a natural person, and 2500 penalty units, in the case of a body corporate.

New section 169D(2) provides that the offence under section 169D(1) does not apply to the following persons who carry out a kind of work prescribed for the purposes of subsection (1)—

• a person who is authorised under this Act or the building regulations to carry out that kind of work on behalf of a building surveyor;

• a natural person who is registered as an architect under Part 3 of the Architects Act 1991, if the carrying out of that kind of work is an architectural service;

• a member of an approved partnership (within the meaning of the Architects Act 1991), if the carrying out of that kind of work is an architectural service;

• an approved company (within the meaning of the Architects Act 1991) or a director of such an approved company, if the carrying out of that kind of work is an architectural service;

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• a person who is working under the supervision of a person who is registered as an architect under Part 3 of the Architects Act 1991 to obtain experience on practical architectural work in order to meet the requirement in section 10(b) of that Act, if the carrying out of that kind of work is an architectural service;

• an endorsed building engineer, if the carrying out of that kind of work is a professional engineering service.

Clause 44 amends section 169F of the Building Act 1993, which provides for an offence, and exceptions to the offence, relating to carrying out domestic building work under a major domestic building contract.

Subclause (1) substitutes the heading to section 169F of the Building Act 1993 to refer to domestic building work.

Subclause (2)(a) makes a technical amendment to section 169F(2).

Subclause (2)(b) substitutes section 169F(2)(b) to provide that a person carrying out domestic building work under a major domestic building contract does not commit an offence against section 169F(1) if the person carries out that work as an employee of a builder registered under section 171(1)(a) of the Building Act 1993, whose registration authorises the carrying out of that work, in the course of the person's employment with that builder.

Subclause (2)(c) substitutes "the person" for "the unregistered person" in paragraphs (a), (c) and (d) of section 169F(2).

Subclauses (3), (4) and (5) make technical amendments respectively to subsections (3), (4) and (5) of section 169F.

Clause 45 inserts new section 175AB into the Building Act 1993.

New section 175AB(1) provides that the Authority may request in writing that a registered building practitioner give to the Authority information in relation to the practitioner that is required to be included in the Register of Building Practitioners.

New section 175AB(2) provides that a registered building practitioner must comply with a request under section 175AB(1) from the Authority within 5 business days after receiving the request. It also provides a penalty for this offence of 10 penalty

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units, in the case of a natural person, and 50 penalty units; in the case of a body corporate.

Clause 46 amends section 180B of the Building Act 1993 which provides grounds for the immediate suspension of the registration of a registered building practitioner. Clause 46 inserts new section 180B(4) into the Building Act 1993 to provide that the suspended person must ensure that the written proof of the required insurance is accompanied by the appropriate fee for the examination of the written proof by the Authority determined in accordance with the guidelines under Division 1 of Part 12 of the Building Act 1993 or prescribed by the regulations.

Clause 47 inserts new sections 187NA and 187NB into the Building Act 1993.

New section 187NA(1) provides that the Authority may request in writing that a licensed building employee give to the Authority information in relation to the employee that is required to be contained in the Register of Building Employees. New section 187NA(2) provides that a licensed building employee must comply with a request under subsection (1) from the Authority within 5 business days after receiving the request. It also provides a penalty for this offence of 10 penalty units.

New section 187NB provides that a licensed building employee must give the Authority written notice of any change to the information in relation to the employee required to be contained in the Register of Building Employees within 14 days after the change occurs. It also provides a penalty for this offence of 10 penalty units.

Clause 48 amends section 189(2) of the Building Act 1993 to omit "of Environment, Land, Water and Planning" as a consequence of clause 31(1) of the Bill inserting a definition of Department into section 3(1) of the Building Act 1993.

Clause 49 amends section 197 of the Building Act 1993, which provides for the functions of the Authority. Clause 49 makes a technical amendment to paragraph (h) and inserts new paragraph (ia) to provide that it is a function of the Authority to provide, gather or obtain information (including advice) or data for analysis for any of the following purposes—

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• to assist the Minister in administering the Building Act 1993;

• to assist the Authority in performing any of its other functions under the Building Act 1993.

Clause 50 substitutes section 199 of the Building Act 1993 which provides for the Authority to delegate its functions.

New section 199(1) provides that the Authority may by instrument delegate to any person any of its functions except a function under section 80D, 205M or 206(1) of the Building Act 1993.

New section 199(2) provides that, despite section 199(1), the Authority may by instrument delegate a function under section 80D or 205M to the chief executive officer or the State Building Surveyor

New section 199(3) and (4) provide for the subdelegation of the Authority's functions if the instrument of delegation authorises the sub-delegation of that function.

New section 199(5) provides that a subdelegation under section 199(3) or (4) may be made subject to any conditions or limitations that are specified in the instrument of delegation that authorises the subdelegation.

Clause 51 inserts new section 205DB(1)(ca) into the Building Act 1993 to provide that the amounts authorised by the Minister for any one or more of the following purposes—

• determining whether cladding rectification work is required to be carried out to improve the safety of a building and the nature and scope of such cladding rectification work;

• the carrying out, or to facilitate the carrying out, of cladding rectification work;

• overseeing the activities described in subparagraphs (i) and (ii);

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Clause 52 amends section 221Q of the Building Act 1993 to allow the Authority to license a person to carry out particular types of work that fall within a class or classes of plumbing work or a class or classes of specialised plumbing work in certain circumstances. This clause also makes a consequential amendment to section 221Q(2) to refer to one or more particular types of plumbing work.

Clause 53 amends section 221ZU of the Building Act 1993, which provides for the suspension of a plumbing licence if insurance ceases. Clause 53 inserts new section 221ZU(4) into the Building Act 1993 to provide that the suspended person must ensure that the written proof of the required insurance is accompanied by the prescribed fee for the examination of the written proof by the Authority.

Clause 54 inserts new sections 221ZZZR and 221ZZZS into the Building Act 1993.

Section 221ZZZR(1) provides that the Authority may request in writing that a licensed or registered plumber give to the Authority information in relation to the plumber that is required to be recorded in the Register of Plumbers.

Section 221ZZZR(2) makes it an offence for a licensed or registered plumber to not comply with a request under subsection (1) from the Authority within 5 business days after receiving the request. The maximum penalty for the offence is 10 penalty units.

Section 221ZZZS provides that a licensed or registered plumber must give the Authority written notice of any change to the information in relation to the plumber required to be recorded in the Register of Plumbers within 14 days after the change occurs. Failure to do so is an offence with a maximum penalty of 10 penalty units.

Clause 55 inserts new section 221ZZZTA into the Building Act 1993 which provides that the Authority must publish the information on the Register of Plumbers that is required to be published on its website. This section also provides that the Authority may publish the information on the Register of Plumbers that is permitted by the regulations to be published on its website.

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Clause 56 inserts new section 228(1)(ab) into the Building Act 1993 to provide that, for the purposes of the exercise of the power of entry under section 228D of the Building Act 1993, including any powers relating to that power, an authorised person includes a municipal building surveyor or a person authorised by the municipal building surveyor for the purposes of carrying out the municipal building surveyor's functions under section 36 of the Building Act 1993.

Clause 57 substitutes section 259AB of the Building Act 1993, which provides for information sharing arrangements with the Authority.

Section 259AB(1) provides that the Authority may enter into, or approve of, an arrangement (an information sharing arrangement) with one or more relevant agencies for the purpose of—

• the sharing or exchanging of information, between the Authority and a relevant agency that is a party to the arrangement, which—

• has been acquired by the Authority in performing its functions or acquired by the relevant agency in performing its functions; or

• has been disclosed to the Authority or the relevant agency under that arrangement or another information sharing arrangement to assist in the performance of the Authority's functions or the relevant agency's functions; or

• the sharing or exchanging of information, between any 2 or more relevant agencies that are parties to the arrangement, which—

• has been acquired by any one of those relevant agencies in performing its functions; or

• has been disclosed to any one of those relevant agencies under that arrangement or another information sharing arrangement to assist in the performance of its functions.

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Section 259AB(2) provides that, subject to subsection (3), under an information sharing arrangement, the Authority and a relevant agency are authorised by virtue of section 259AB—

• to request and receive information (including personal information) held by another party to the arrangement; and

• to disclose information (including personal information) to another party to the arrangement.

Section 259AB(3) provides that the information that may be exchanged or shared under subsection (2)—

• between the Authority and a relevant agency, must be reasonably necessary to assist in the performance of the Authority's functions under this Act or the functions of the relevant agency; and

• between a relevant agency and another relevant agency must be information that—

• the receiving relevant agency could have requested from the Authority under section 259AB(3)(a); or

• is reasonably necessary to assist in the performance of the relevant agency's functions under the Building Act 1993.

Section 259AB(4) provides that, without limiting section 259AB(2) and (3), the Authority may also (whether as part of an information sharing arrangement or otherwise)—

• refer any matter (including any complaint) with respect to work carried out by a building practitioner or building employee, plumbing work or the provision of architectural services or engineering services to a building regulator or law enforcement agency; or

• receive any matter of a type described in paragraph (a) from a building regulator or law enforcement agency; or

• conduct a joint investigation into any matter of a type described in paragraph (a) with a building regulator or law enforcement agency.

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Section 259AB(5) provides that any building regulator or law enforcement agency referred to in section 259AB(4) is, despite any other Act or law of the State, authorised to refer a matter referred to in subsection (4) to the Authority or to conduct an investigation into the matter jointly with the Authority.

Section 259AB(6) provides that section 259AB does not limit—

• the powers of the Authority under the Building Act 1993; or

• the operation of any other Act under which a relevant agency is authorised or required to disclose information to another person or body; or

• the giving of information—

• to a court or tribunal in the course of legal proceedings; or

• pursuant to an order of a court or tribunal; or

• to the extent reasonably required to enable the investigation or the enforcement of a law of the State or of any other State or a Territory or of the Commonwealth; or

• with the written authority of the Minister; or

• with the written authority of the person to whom the information relates.

The purposes of section 259AB(4), (5) and (6) are to ensure that the other subsections of section 259AB do not limit in any way the powers and authorisations of the Authority, other building regulators, law enforcement agencies and relevant agencies to perform their investigative, regulatory, law enforcement and other functions.

Section 259AB(7) provides definitions of building regulator, information, law enforcement agency, plumbing work, and relevant agency for the purposes of section 259AB of the Building Act 1993.

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The word information is defined to include data to streamline the drafting of section 259AB. It is not intended to alter the meaning of information or data or affect, by contrast, the definition of information in new section 207 of the Building Act 1993 that clause 25 of the Bill inserts into the Building Act 1993.

Clause 58 amends section 261(1) of the Building Act 1993, which provides for the powers of the Governor in Council to make regulations.

Subclause 58(1) inserts new section 261(1)(bc) to provide a power to make regulations for or with respect to building manuals including, but not limited to, the information that must be contained in, or accompany, a draft building manual; the format of a draft building manual; and the requirements for keeping, updating and providing access to an approved building manual.

Subclause 58(2) substitutes new section 261(1)(ha) to provide a power to make regulations for or with respect to specifying the kind of work that a category or class of registered building practitioner (other than a builder) is authorised to carry out by that registration. Subclause 58(2) supports clauses 31 and 43 of the Bill which also make amendments to the Building Act 1993 in relation to building practitioners.

Subclause 58(3) amends section 261(1)(l) to provide a wider power to make regulations for or with respect to fees payable for any expenses incurred by those persons or bodies in providing the services or work, and the timing and manner of payment of those fees, in addition to the power to make regulations for or with respect to fees payable for other matters, services or work.

Clause 59 inserts new sections 285 and 286 into the Building Act 1993 to provide for transitional and savings provisions as a consequence of the Building, Planning and Heritage Legislation Amendment (Administration and Other Matters) Act 2022 (the amending Act).

New section 285(1) provides that despite the substitution of section 210(2)(n) by section 27 of the amending Act—

• the Building Regulations Advisory Committee remains the same body and continues in operation; and

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• the member of the Building Regulations Advisory Committee appointed under section 210(2)(n) immediately before the commencement of section 27 of the amending Act remains in office for the remainder of that member's term of office.

Section 285(1) relates to clause 27 of the Bill which amends section 210(2) of the Building Act 1993 to provide that the Building Monitor, or an employee of the Department nominated by the Building Monitor, is a member of the Building Regulations Advisory Committee in place of any member appointed in accordance with section 210(2)(n) of the Building Act 1993.

New section 285(2) provides that, despite the substitution of section 211B(2)(k) by section 28 of the amending Act—

• the Plumbing Advisory Council remains the same body and continues in operation; and

• the member of the Plumbing Advisory Council appointed under section 211B(2)(k) immediately before the commencement of section 28 of the amending Act remains in office for the remainder of that member's term of office.

Section 285(2) relates to clause 28 of the Bill which amends section 211B of the Building Act 1993 to provide that the Building Monitor, or an employee of the Department nominated by the Building Monitor, is a member of the Plumbing Advisory Council in place of any member appointed in accordance with section 211B(2)(k) of the Building Act 1993.

New section 285(3) provides that a person registered in the category of draftsperson in a prescribed class of draftsperson before the commencement of section 31(3) of the amending Act (the former registration) is taken to be registered in the category of building designer in the prescribed class of building designer equivalent to that prescribed class of draftsperson on and from the commencement of section 31(3) (the new registration) and any condition imposed on the former registration is taken to be imposed on the new registration.

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New section 285(4) provides that an application made under section 170(1) of the Building Act 1993 for the registration of a person in the category of a draftsperson in a prescribed class of draftsperson received but not determined by the Authority before the commencement of section 31(3) of the amending Act is taken to be an application for registration of that person in the category of building designer in the prescribed class of building designer equivalent to that prescribed class of draftsperson.

Sections 285(3) and (4) relate to clause 31(3) of the Bill which substitutes paragraph (e) of the definition of building practitioner in section 3(1) of the Building Act 1993 to provide that building designer is a category of building practitioner.

New section 285(5) provides that a person registered in the category of a person responsible for a building project or any stage of a building project in a prescribed class of person responsible for a building project or any stage of a building project before the commencement of section 31(5) of the amending Act (the former registration) is taken to be registered in the category of project manager in the prescribed class of project manager equivalent to that prescribed class of person responsible for a building project or any stage of a building project on and from the commencement of section 31(5) (the new registration) and any condition imposed on the former registration is taken to be imposed on the new registration.

New section 285(6) provides that an application made under section 170(1) of the Building Act 1993 for the registration of a person in the category of a person responsible for a building project or any stage of a building project in a prescribed class of person responsible for a building project or any stage of a building project received but not determined by the Authority before the commencement of section 31(5) of the amending Act is taken to be an application for registration of that person in the category of project manager in the prescribed class of project manager equivalent to that prescribed class of a person responsible for a building project or any stage of a building project.

Sections 285(5) and (6) relate to clause 31(5) of the Bill which substitutes paragraph (h) of the definition of building practitioner in section 3(1) of the Building Act 1993 to provide that project manager is a category of building practitioner.

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New section 285(7) provides that section 17A(2) of the Building Act 1993, as inserted by section 32 of the amending Act, does not apply in respect of a building permit issued for building work in respect of a class of building, if the application for the permit was received by the relevant building surveyor but the permit was not issued before that class of building was prescribed for the purposes of section 17A(2) as inserted by section 32 of the amending Act.

New section 285(8) provides that section 35C(1), as inserted by section 36 of the amending Act, does not apply in respect of building work of a class prescribed for the purposes of section 35C(1), if the building permit for that building work was issued by the relevant building surveyor before that class of building work was prescribed.

New section 285(9) provides that section 41A(1), as inserted by section 37 of the amending Act, does not apply in respect of an application for an occupancy permit in relation to the construction of a new building of a prescribed class of building, if that class of building was prescribed before the application for the occupancy permit was received by the relevant building surveyor.

Section 285(9) relates to clause 37 of the Bill which inserts new section 41A(1) into the Building Act 1993 to require a person referred to in section 41(a), who intends to apply for an occupancy permit in respect of the construction of a new building of a prescribed class of building, to prepare a draft building manual for the building in accordance with the regulations and ensure that the draft building manual accompanies the application made to the relevant building surveyor. A person referred to in section 41(a) of the Building Act 1993 is the owner of a building or a person acting on behalf of the owner, or the owner of the land in or on which the building work has been carried out.

New section 285(10) provides that, for the purposes of this section, amending Act means the Building, Planning and Heritage Legislation Amendment (Administration and Other Matters) Act 2022.

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New section 286(1) provides that the Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of the Building, Planning and Heritage Legislation Amendment (Administration and Other Matters) Act 2022, including any repeals and amendments made as a result of the enactment of that Act.

New section 286(2) provides that the regulations made under this section may have retrospective effect to a day that is not before the day on which the Building, Planning and Heritage Legislation Amendment (Administration and Other Matters) Act 2022 received Royal Assent. This section also allows the regulations to be of limited or general application, differ according to time, place or circumstance, or leave any matter or thing to be decided by a specified person or class of person.

New section 286(3) provides that to the extent to which any provisions of the regulations made under this section takes effect from a date that is earlier than the date of its making, the provision does not operate so as to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its making, or to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its making.

New section 286(4) provides that regulations under this section have effect despite anything to the contrary in any Act other than the Building, Planning and Heritage Legislation Amendment (Administration and Other Matters) Act 2022 or the Charter of Human Rights and Responsibilities 2006) or in any subordinate instrument.

New section 286(5) provides that consultation and preparation of a regulatory impact statement under sections 6 and 7, respectively, of the Subordinate Legislation Act 1994 are not required for any proposed statutory rule that is to be made under this section.

New section 286(6) provides that this section will be repealed on 1 December 2026.

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Clause 60 amends clause 1(b) of Schedule 2 to the Building Act 1993 to provide that an application must contain any matters, and be accompanied by any documents, prescribed for the purposes of this clause or under this Act.

Clause 61 repeals the heading to Part 4 of Schedule 10 to the Building Act 1993. This is a statute law revision amendment.

Division 2—Consequential Amendments to Other Acts

Clause 62 inserts new section 52I(2)(ca) into the Domestic Building Contracts Act 1995 to provide that a conciliation officer may also disclose information obtained in the course of carrying out a function under Part 4 of the Domestic Building Contracts Act 1995 if the disclosure is made for the purpose of an information sharing arrangement entered into by the chief dispute resolution officer under section 259AB of the Building Act 1993.

Clause 63 amends section 49 of the Building and Construction Industry Security of Payment Act 2002 to allow the Authority, a Commissioner (within the meaning of the Building Act 1993), the chief executive office of the Authority and any member of staff of the Authority to use or disclose any information received by the Authority under the Building and Construction Industry Security of Payment Act 2002 to the extent necessary for the performance of any function or duties or the exercise of any power of the Authority under Subdivision 2 of Division 1A of Part 11 (Registration) or Division 3 of Part 11 (Disciplinary proceedings and action) of the Building Act 1993. Previously, such information could only be use or disclosed to the extent necessary for the performance of any functions or duties or the exercise of any powers of the Authority under the Building and Construction Industry Security of Payment Act 2002.

Clause 64 inserts a note at the foot of section 34(3)(b) of the Victorian Civil and Administrative Tribunal Act 1998 to note that there are information sharing functions of the Tribunal under sections 38AA and 147A.

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This clause also inserts new section 38AA into the Victorian Civil and Administrative Tribunal Act 1998. Section 38AA provides that it is a function of the Tribunal to disclose information or data of a prescribed class of information or data to the Victorian Building Authority or a relevant agency in accordance with an information sharing arrangement under section 259AB of the Building Act 1993 entered into by the Tribunal.

Clause 65 inserts new paragraph 67(1)(da) into the Owners Corporations Act 2006 to provide that at the first meeting of the owners corporation the application for registration of the plan of subdivision must also provide for the purposes of the owners corporation a building manual approved by a relevant building surveyor under section 41B(1) of the Building Act 1993.

Clause 66 inserts new section 15A into the Sale of Land Act 1962 which provides for approved building manuals to be given to purchasers of land.

Section 15A(1) provides that on the settlement of a contract for the sale of land, on which there is a building in respect of which a building manual has been approved by a relevant building surveyor under section 41B(1) of the Building Act 1993, the vendor of the land must give an up-to-date copy of the approved building manual to the purchaser of the land. It is an offence to not comply with this section. The maximum penalty for this offence is 60 penalty units in the case of a natural person or 300 penalty units in the case of a body corporate.

Section 15A(2) provides that subsection (1) does not apply if the land is affected by an owners corporation.

Clause 67 amends new section 42(1) of the Cladding Safety Victoria Act 2020 to include a reference to section 205DB(1)(ca), in addition to sections 205DB(1)(b), (c) and (2).

Part 5—Amendments in relation to Automatic Mutual Recognition

Division 1—Amendment of the Building Act 1993

Clause 68 amends section 3(1) of the Building Act 1993 by inserting definitions of automatic deemed registration, home State, home State registration, local registration authority, second State and

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second State occupation. Clause 68 also inserts notes at the foot of the definitions of licensed building employee and registered building practitioner to explain that section 42H(1) of the Mutual Recognition Act 1992 of the Commonwealth provides that a reference in the law of the second State to a person registered (however described) for the second State occupation includes a reference to a person who has automatic deemed registration to carry on an activity covered by that occupation. Section 42H(2)(a) of that Act provides that a person who has automatic deemed registration in a State is taken to have had the registration conferred by the operation of the law of the State.

Clause 69 inserts new section 170AB into the Building Act 1993 to provide that a person relying on automatic deemed registration must ensure that notification that is given to the Authority for automatic deemed registration must be accompanied by written proof that the person will be covered or is eligible to be covered by the required insurance. The person must also ensure that the written proof is accompanied by the appropriate fee.

Clause 70 substitutes section 172 of the Building Act 1993. Substituted section 172(1) provides that a registered building practitioner must, on or before each anniversary of the practitioner's registration, pay to the Victorian Building Authority Fund the appropriate annual fee under Division 1 of Part 12 (Building administration) or prescribed by the regulations.

Substituted section 172(2) provides that if under Part 9 of the Building Act 1993 a registered building practitioner, other than a person who has automatic deemed registration, is required to be covered by insurance, the practitioner must give written proof to the Authority on or before each anniversary of the practitioner's registration that the practitioner will be covered by the required insurance or is eligible to be covered by that insurance. The person must also ensure that the written proof is accompanied by the appropriate fee.

Substituted section 172(3) provides that a person who has automatic deemed registration to carry out an activity that may be carried out under a registration under Part 11 of the Building Act 1993 must, on or before each anniversary after the commencement of the person's automatic deemed registration, give to the Authority written proof that, until the next anniversary of the commencement of that automatic deemed registration, the

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person will be covered, or is eligible to be covered (as applicable), by any required insurance for that registration under Part 9 of the Building Act 1993.

Substituted section 172(4) provides for payment of the appropriate fee for examination by the Authority of the written proof of the required insurance provided under section 172(2) or (3).

Substituted section 172(5) provides that a provisionally registered builder subcontractor must, on each anniversary of the builder subcontractor's registration, report to the Authority on the builder subcontractor's progress in complying with a training plan (if applicable), the compliance with which is a condition of registration under section 171H(1B) of the Building Act 1993.

Substituted section 172(6) inserts a definition of prescribed amount.

Clause 71 amends section 175(2)(b) of the Building Act 1993 to clarify that it does not refer to a person who has automatic deemed registration.

This clause also inserts after new section 175(2)(c), which requires that, if a person has automatic deemed registration to carry out any activities that may be carried out under a registration under Part 11 of the Building Act 1993, the name of that person and those activities must be included on the Register of Building Practitioners.

This clause also amends section 175(3)(b) of the Building Act 1993, to refer to a person referred to in subsection (2)(c) who has had a disciplinary sanction imposed on them by the local registration authority in that person's home State.

Clause 72 substitutes 176A(2) of the Building Act 1993 to provide that a certificate of registration includes a certificate of registration issued to an endorsed building engineer under the Professional Engineers Registration Act 2019 and in the case of a person who has automatic deemed registration as a building practitioner, evidence of the person's home State registration.

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Clause 73 substitutes 187N(2)(b) of the Building Act 1993 with section 187N(2)(b), (c) and (d) of that Act.

Section 187N(2)(b) provides that the Register of Building Employees must include the names and classes of licence of persons who applied for and were granted a licence under Part 11A of the Building Act 1993 (Registration of building employees).

Section 187N(2)(c) provides that if a person has automatic deemed registration to carry out any activities that may be carried out under a licence under Part 11A of the Building Act 1993, the Register of Building Employees must include the name of that person and those activities.

Section 187N(2)(d) provides that the Register of Building Employees must include any disciplinary action imposed on a person licenced under Part 11A of the Building Act 1993 or, in the case of a person referred to in paragraph (c), imposed by the local registration authority in that person's home State.

Clause 74 inserts a note at the foot of the definitions of licensed plumber and registered plumber in section 221B of the Building Act 1993, to explain the meaning of section 42H(1) of the Mutual Recognition Act 1992 of the Commonwealth, in that, a reference in the law of the second State to a person registered (however described) for the second State occupation includes a reference to a person who has automatic deemed registration to carry on an activity covered by that occupation. The note also explains that section 42H(2)(a) of that Act provides that a person who has automatic deemed registration in a State is taken to have had the registration conferred by the operation of the law of the State.

Clause 75 inserts new section 221T(6) and (7) into the Building Act 1993 to provide that a person who intends to carry out an activity that may be carried out under a licence under Part 12A of the Building Act 1993 in reliance on automatic deemed registration must ensure that the notification given to the Authority under section 42J(1) of the Mutual Recognition Act 1992 of the Commonwealth is accompanied by written proof that, until the first anniversary of the commencement of the person's automatic deemed registration, the person is covered by the required insurance for that licence. The person must also ensure that the written proof is accompanied by the prescribed fee.

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Clause 76 inserts new sections 221ZB(6) and (7) into of the Building Act 1993 to provide that a person who has automatic deemed registration to carry out an activity that may be carried out under a licence under Part 12A (Plumbing work) of the Building Act 1993 must, on or before each anniversary after the commencement of the person's automatic deemed registration, give to the Authority written proof that until the next anniversary of the commencement of that registration the person is covered by the required insurance for that licence. The person must ensure that the written proof is accompanied by the prescribed fee for examination of the written proof by the Authority.

Clause 77 inserts a definition of licence in new section 221ZFB(2) of the Building Act 1993 to provide that in that section licence includes, in the case of a person who has automatic deemed registration as a licensed plumber, evidence of the person's home State registration.

Clause 78 amends section 221ZZZT of the Building Act 1993, which provides for the Register of Plumbers.

Subclause (1) amends section 221ZZT to refer to "persons" instead of "people".

Subclause (2) makes amendments to section 221ZZZT(2) of the Building Act 1993 to set out the matters that must be recorded by the Registrar in the Register of Plumbers in relation to persons who have automatic deemed registration to carry out any activities that may be carried out under a licence under Part 12A of the Building Act 1993. In addition, this clause provides that the Registrar must record details of any criminal sanctions imposed on a person on the Register.

Clause 79 substitutes section 228B(6) of the Building Act 1993 to provide that the identification of a municipal building surveyor or a relevant building surveyor when exercising a power as an authorised person under Division 2 of Part 13 of the Building Act 1993 is a registration card or, in the case of a person who has automatic deemed registration as a building surveyor, evidence of the person's home State registration.

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Division 2—Amendment of the Architects Act 1991

Clause 80 amends section 3(1) of the Architects Act 1991 to insert definitions for automatic deemed registration, second State and second State occupation. Clause 80 also inserts at the foot of the definition of architect a note to explain the meaning of section 42H(1) of the Mutual Recognition Act 1992 of the Commonwealth, in that, a reference in the law of the second State to a person registered (however described) for the second State occupation includes a reference to a person who has automatic deemed registration to carry on an activity covered by that occupation. The note also explains that section 42H(2)(a) of that Act provides that a person who has automatic deemed registration in a State is taken to have had the registration conferred by the operation of the law of the State.

Clause 81 inserts new section 9A into the Architects Act 1991 in relation to the proof of required insurance for persons intending to rely on automatic deemed registration.

Section 9A(1) provides that this section applies to a person who intends to carry out an activity that may be carried out under a registration under Part 3 of the Architects Act 1991 in reliance on an automatic deemed registration that is the subject of a determination under section 42J(4) of the Mutual Recognition Act 1992 of the Commonwealth.

Section 9A(2) provides that the person must ensure that the notification give to the Authority under section 42J(1) of the Commonwealth Act is accompanied by written proof that, until the next occurrence of July 1, the person will be covered by the required insurance for the registration under Part 3 of the Architects Act 1991.

Section 9A(3) provides that the person must ensure that the written proof is accompanied by the prescribed fee for the examination of the written proof by the Board.

Division 3—Amendment of the Surveying Act 2004

Clause 82 amends section 3 of the Surveying Act 2004

Subclause (1) inserts definitions for automatic deemed registration, home State registration, second State and second State occupation.

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Subclause (2) inserts a note at the foot of the definition of licensed surveyor to explain the meaning of section 42H(1) of the Mutual Recognition Act 1992 of the Commonwealth, in that, a reference in the law of the second State to a person registered (however described) for the second State occupation includes a reference to a person who has automatic deemed registration to carry on an activity covered by that occupation. The note also explains that section 42H(2)(a) of that Act provides that a person who has automatic deemed registration in a State is taken to have had the registration conferred by the operation of the law of the State.

Clause 83 substitutes section 57(1) of the Surveying Act 2004 to provide that the Board must issue an identity card to each licensed surveyor who has applied for, and been granted, registration under Part 2 of the Surveying Act 2004, and to each person who has automatic deemed registration to carry out an activity that may be carried out under a registration under Part 2 of the Surveying Act 2004 if that person has no evidence of the person's home State registration to carry out that activity.

Clause 84 substitutes section 58(3) of the Surveying Act 2004 to provide that a licensed surveyor, or a person acting under the direction and supervision of a licensed surveyor, may not exercise any powers under this section if he or she fails to produce, on request, for inspection by the occupier of the land an identity card issued to the licensed surveyor under Part 8 of the Surveying Act 2004, or identification that shows that the person is acting under the direction and supervision of a licensed surveyor, or, if the licensed surveyor is a person who has automatic deemed registration to carry out an activity that may be carried under a registration under Part 2 of the Surveying Act 2004, evidence of the person's home State registration to carry out that activity.

Clause 85 amends section 22A(1) of the Surveying Act 2004 to remove unnecessary punctuation.

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Part 6—Amendment of the Architects Act 1991

Division 1—Amendments in relation to governance of the Board and panels

Clause 86 inserts new section 21A(1A) into the Architects Act 1991 which allows a person to be appointed to a panel for a period of up to 5 years specified in the instrument of appointment.

Clause 87 substitutes section 22 of the Architects Act 1991 to provide that a person appointed under section 21A is entitled to receive any fees or allowances determined by the Minister, instead of the Governor in Council.

Clause 88 substitutes section 47 of the Architects Act 1991.

Section 47(1) provides that the Board is to consist of at least 3 and no more than 9 members appointed by the Governor in Council on the recommendation of the Minister. Previously, the Board was required to consist of 10 members.

Section 47(2) provides that in recommending members of the Board, the Minister must ensure that potential Board members have certain skills, knowledge and expertise as set out in this section. These skills, knowledge and expertise includes administration of regulatory arrangements for the building industry, public engagement and communications, risk management, public administration or governance, financial, accounting or program management, strategic planning and architecture.

Clause 89 repeals section 48 of the Architects Act 1991 as it is no longer required. Persons or bodies are no longer required to nominate persons to the Board.

Clause 90 amends section 49(1) of the Architects Act 1991 to allow Board members to hold office for a period of up to 5 years, instead of 3, as specified in the instrument of appointment.

Clause 91 amends section 50 of the Architects Act 1991 to provide that Board members are entitled to receive the remuneration and allowances determined by the Minister, instead of the Governor in Council. This clause also makes a statute law revision to remove an unnecessary "(1)".

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Clause 92 amends section 51(2) of the Architects Act 1991 to clarify that the Governor in Council, on the recommendation of the Minister, may at any time remove a member of the Board from office.

Clause 93 amends section 52 of the Architects Act 1991 to provide that the Minister must appoint one of the members of the Board to be the Chairperson of the Board. Previously, the Board elected a member to be the Chairperson.

This clause also makes a consequential amendment to section 52(3) and repeals section 52(4) to reflect the change that the Minister appoints a Chairperson instead of one being elected by the Board.

Clause 94 amends section 53 of the Architects Act 1991 to require the Minister to appoint one of the members of the Board to be Deputy Chairperson of the Board. Previously, the Deputy Chairperson was elected by the Board.

This clause also makes a consequential amendment to section 53(3) and repeals section 53(4) as a result of this change.

Clause 95 substitutes section 54(4) of the Architects Act 1991 to provide that a majority of the members of the Board constitute a quorum, which must include the Chairperson or the Deputy Chairperson. This reflects the change to the membership of the Board made by clause 88.

Clause 96 inserts new section 57B into the Architects Act 1991. Section 57B(1) provides that within 3 months of the commencement of this provision, the Board must prepare a 4-year strategic plan and submit a draft of the plan to the Minister for approval. Section 57B(2) provides that the Board must also prepare and submit a draft of a 4-year strategic plan within 6 months before the expiry of the previous approved strategic plan.

Section 57B(3) provides that a strategic plan must contain a vision statement, mission statement and a statement of values.

Section 57B(4) allows the Minister to approve a draft strategic plan, or reject the plan and ask the Board to submit an amended draft which contains or addresses any changes requested by the Minister.

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Section 57B(5) requires the Board to adopt and implement a strategic plan approved by the Minister, and to publish the plan on its website and keep it published there. Section 57B(6) provides that an approved strategic plan expires 4 years after its approval.

Section 57B(7) provides that the Board must in its annual report of operations prepared for the purposes of section 45 of the Financial Management Act 1994 report on its progress in implementing its strategic plan.

Clause 97 inserts new Division 4 into Part 10 of the Architects Act 1991 consisting of one section (section 80) which sets out savings and transitional provisions as a result of the amendments of the Building, Planning and Heritage Legislation Amendment (Administration and Other Matters) Act 2022.

New Section 80(1) defines amending Act as the Building, Planning and Heritage Legislation Amendment (Administration and Other Matters) Act 2022 and commencement day as the day Division 1 of Part 6 of the amending Act commences.

Section 80(2) provides transitional arrangements for persons who are appointed to a panel before the commencement day and would remain appointed under their instrument of appointment, despite the amendments made by section 86 of the amending Act.

For persons whose instrument of appointment is for a fixed period, this section clarifies that they are to continue to be appointed until the end of that term.

For persons whose instrument of appointment does not provide a fixed term, the person continues to be appointed as follows—

• if the person was appointed less than 3 years before the commencement day, the person continues to be appointed until the end of 5 years after the date of appointment;

• if the person was appointed more than 3 years, but less than 5 years, before the commencement day, the person continues to be appointed until the end of 3 years after the commencement day;

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• if the person was appointed more than 5 years before the commencement day, the person continues to be appointed until the end of one year after the commencement day.

Section 80(3) provides that, despite the amendments to Part 6 made by Division 1 of Part 6 of the amending Act—

• the Board is taken to be the same body and continues in operation;

• a member of the Board appointed immediately before the commencement day continues to be appointed in accordance with the instrument of appointment until the end of the term of the appointment;

• a person appointed as Chairperson or Deputy Chairperson of the Board immediately before the commencement day continues to be so appointed until the end of the term of the appointment;

• the requirement in section 47(2)(c) that the Minister must ensure that the member of the Board collectively have certain skills, knowledge and experience does not apply until on or after 1 July 2024.

Division 2—Other amendments to the Architects Act 1991

Clause 98 inserts new section 11A into the Architects Act 1991 which provides that the Board must issue a certificate of registration to a person who has been registered by the Board as an architect, and that the certificate of registration must be in a form approved by the Board and contain any prescribed information.

Clause 99 inserts new section 13A into the Architects Act 1991 which provides that the Board must issue a certificate of approval to a partnership that has been approved by the Board, and that the certificate of approval must be in a form approved by the Board and contain any prescribed information.

Clause 100 inserts new section 14A into the Architects Act 1991 which provides that the Board must issue a certificate of approval to a company that has been approved by the Board, and that the certificate of approval must be in a form approved by the Board and contain any prescribed information.

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Clause 101 inserts new section 15A(2) into the Architects Act 1991 which provides that an architect must ensure that the written proof of the required insurance is accompanied by the prescribed fee for the examination of the written proof by the Board.

Clause 102 amends section 16 of the Architects Act 1991 to require that the Register of Architects be in the prescribed form (if any). This clause also inserts a new section 16(2) to clarify that the Register may include details of any criminal sanction imposed on an architect and any disciplinary sanction imposed on an architect.

Clause 103 substitutes section 17 of the Architects Act 1991 with new sections 17AA, 17AB, 17AC and a substituted section 17.

Section 17AA provides that if the regulations require any details specified in section 16(2) to be included in the Register of Architects, the Board must record that information as soon as practicable after the prescribed period after the criminal sanction or disciplinary sanction is imposed. The prescribed period is defined in section 17AA(4) such that it ends after any period in which an application for appeal or review could be made or, if an application for review or appeal is made, after any decision of VCAT to affirm the disciplinary sanction or decision to dismiss an appeal against the criminal sanction.

Sections 17AA(2) and (3) provide how long information about a disciplinary sanction and criminal sanction, respectively, needs to remain on the Register of Architects.

Section 17AB allows the Board to request in writing from an architect, information in relation to the architect that is required to be contained in the Register of Architects. It is an offence with a maximum penalty of 10 penalty units for an architect to not comply with a request from the Board under this section within 5 business days.

Section 17AC provides that the Board must publish on its website information on the Register of Architects that is required by the regulations to be published. This section also allows the Board to publish on its website any information on the Register of Architects that the regulations permit to be published.

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Section 17 provides that the Board may, as soon as practicable, remove the details of a person from the Register of Architects if the person is no longer practising as an architect or no longer holds a registration as an architect under Part 3 of the Architects Act 1991.

Clause 104 amends section 69(1)(j) of the Architects Act 1991 to allow regulations to be made in relation to information to be contained in certificates of registration and approval.

Part 7—Amendments in relation to notices, publication and inspection of documents and hearings under the Heritage

Act 2017

Division 1—Amendments in relation to notices and publication and inspection of documents

The Heritage Act 2017 contains a number of notification and publication requirements, as well as requirements that certain documents, the Heritage Register and Heritage Inventory be made physically available for inspection. The amendments made by this Division provide for the Heritage Council and Executive Director to comply with these requirements via online publication provided the Heritage Council and Executive Director continue to facilitate inspections by persons upon request.

These amendments are intended to allow for the publication and inspection requirements of the Heritage Act 2017 to be met in a more modern and flexible manner which would minimise the disruptions associated with social distancing measures, such as those imposed during the COVID-19 pandemic.

Clause 105 inserts definitions of the terms personal information and public availability requirements into section 3(1) of the Heritage Act 2017.

The term personal information is defined as having the same meaning as in section 3 of the Privacy and Data Protection Act 2014. The term public availability requirements derives its meaning from section 254A of the Heritage Act 2017.

Clause 106 substitutes section 57 of the Heritage Act 2017. The amended provision requires the Heritage Council to publish and make an up to date copy of the Heritage Register available electronically in accordance with section 254E and on request in accordance with section 254D. New section 57 also requires the Executive

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Director to make an up to date copy of the Heritage Register available on request in accordance with section 254D.

The purpose of this amendment is to require the Heritage Council to publish the Heritage Register on the Heritage Council's website and to require the Heritage Council and Executive Director to facilitate inspections of the Heritage Register on request. The requirement to facilitate in person inspections would not apply when a state of disaster declaration, pandemic declaration or state of emergency declaration is in place.

Clause 107 amends section 94 of the Heritage Act 2017. These amendments—

• introduce a requirement for the Executive Director to publish notice of a permit application electronically in accordance with section 254C; and

• provide for notices published in accordance with section 94(1)(a) to be published after rather than during the Christmas/New Year period; and

• require the Executive Director to either make permit applications available for inspection in person or publish permit applications on the Executive Director's website and facilitate inspections upon request; and

• impose obligations on the Executive Director to protect the privacy of individuals whose personal information is included on permit applications.

Clause 108 substitutes section 121 of the Heritage Act 2017. The amended provision requires the Executive Director to publish and make an up to date copy of the Heritage Inventory available electronically in accordance with section 254E and on request in accordance with section 254D.

The purpose of this amendment is to require the Executive Director to—

• publish the Heritage Inventory online, and

• facilitate inspections of the Heritage Inventory upon request.

The requirement to facilitate in person inspections on request would not apply when a state of disaster declaration, pandemic declaration or state of emergency declaration is in place.

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Clause 109 amends section 171 of the Heritage Act 2017. The amended provision requires the Executive Director to either make a draft World Heritage Strategy Plan available for in person inspection during the inspection period or to publish the draft Strategy Plan on the Department's website and facilitate inspection during the inspection period (the requirement to facilitate in person inspections on request would not apply when a state of disaster declaration, a pandemic declaration or state of emergency declaration is in place).

In providing notice of the preparation of a draft Plan, the Executive Director is required to specify how the draft Strategy Plan will be made available during the inspection period. The amended provision also excludes the Christmas/New Year period from the inspection period.

Clause 110 substitutes section 178 of the Heritage Act 2017. The amended provision requires the Heritage Council and Executive Director to publish and make an up to date copy of each Approved World Heritage Strategy Plan available in accordance with the public availability requirements. The requirement to facilitate in person inspections on request would not apply when a state of disaster declaration, a pandemic declaration or state of emergency declaration is in place.

Clause 111 amends section 184 of the Heritage Act 2017. The amended provision requires the Executive Director to either make a draft World Heritage Management Plan available for in person inspection during the inspection period or to publish the draft Management Plan on the Department's website and facilitate inspection during the inspection period (the requirement to facilitate in person inspections on request would not apply when a state of disaster declaration, pandemic declaration or state of emergency declaration is in place).

Notice of the preparation of a draft Management Plan must specify how the draft Management Plan will be made available during the inspection period. The amended provision also excludes the Christmas/New Year period from the inspection period.

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Clause 112 substitutes section 190 of the Heritage Act 2017. The amended provision requires the Executive Director to publish and make an up to date copy of each Approved World Heritage Management Plan available in accordance with the public availability requirements. The requirement to facilitate in person inspections on request would not apply when a state of disaster declaration, pandemic declaration or state of emergency declaration is in place.

Clause 113 inserts new Part 12A into the Heritage Act 2017. Entitled "Public availability of documents" and comprising sections 254A to 254F, Part 12A sets out requirements in relation to the publication and inspection of documents.

Section 254A sets out the "public availability requirements" that apply to the Heritage Council and Executive Director in making documents available. It provides that the Heritage Council or Executive Director makes a document available in accordance with the public availability requirements if the document is made available either—

• in person in accordance with the requirements set out in section 254B, or

• both electronically in accordance with the requirements set out in section 254C and on request in accordance with the requirements set out in section 254D.

Section 254B sets out the requirements that apply to the in person inspection of documents. It provides that the Heritage Council must make documents available at its office, and the Executive Director must make documents available at the Department's office, free of charge during office hours.

Section 254C sets out the requirements that apply to the electronic publication of documents. The provision requires the Heritage Council and Executive Director to publish and make documents available free of charge on their respective websites (which in the Executive Director's case can be the Department's website) or on sites maintained on their behalf.

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Section 254D sets out the requirements that apply to the inspection of documents, the Heritage Register and the Heritage Inventory on request. The provision requires the Heritage Council and Executive Director to, upon receipt of requests to inspect documents, make documents available for inspection at their respective offices free of charge during office hours at times agreed with the persons who made the requests. Further, the provision requires the Heritage Council to make the Heritage Register available on request and the Executive Director to make the Heritage Register and Heritage Inventory available on request. It is intended that the Heritage Council and Executive Director be able to comply with this requirement by facilitating access to electronic copies of the Heritage Register and Heritage Inventory at their respective offices on request.

Section 254E sets out the requirements that apply to the Heritage Council and Executive Director in making the Heritage Register and Heritage Inventory available electronically. Notably, the Heritage Council and Executive Director are required to make these registers searchable.

Section 254F provides an exception to the requirement for the Heritage Council and Executive Director to comply with in person inspections and requests to inspect documents, the Heritage Register and Heritage Inventory. This exception would apply if a request is made when either—

• a state of disaster declaration under section 23 of the Emergency Management Act 1986 is in force; or

• a pandemic declaration under section 165AB of the Public Health and Wellbeing Act 2008 is in force; or

• a state of emergency declaration under section 198 of the Public Health and Wellbeing Act 2008 is in force.

For example, it is intended that the Heritage Council and Executive Director would not be required to facilitate the in person inspection of documents, the Heritage Register or Heritage Inventory when their respective offices are closed due to a lockdown associated with the COVID-19 pandemic.

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Division 2—Amendments in relation to hearings conducted by the Heritage Council

Part 12 of the Heritage Act 2017 governs the conduct of Heritage Council hearings. Division 2 of Part 12 of the Bill makes a number of amendments to Part 12 to allow the Heritage Council to conduct hearings electronically. The purpose of these amendments is to provide the Heritage Council with greater flexibility in conducting proceedings and also minimise the disruptions associated with social distancing measures, such as those imposed during the COVID-19 pandemic.

Clause 114 inserts definitions of the terms audio link and audio visual link into section 3(1) of the Heritage Act 2017. These terms are defined as having the same meaning as in section 42C of the Evidence (Miscellaneous Provisions) Act 1958.

Clause 115 amends section 247 of the Heritage Act 2017 to expressly allow for the Heritage Council to give directions in relation to the manner in which hearings will be conducted, whether in person or by audio link or audio visual link.

Clause 116 substitutes section 248 of, and inserts section 248A into, the Heritage Act 2017.

Section 248 requires the Heritage Council to conduct public hearings unless a person making a submission objects to making the submission publicly and the Heritage Council is satisfied that the submission is of a confidential nature. This clause amends section 248 to exempt part of a hearing from the requirement to be held publicly in circumstances where a person making a submission objects to making the submission publicly and the Heritage Council is satisfied that the submission is of a confidential nature.

New section 248A provides that the Heritage Council may conduct a hearing in person, by audio link or audio visual link. Where a hearing is conducted by audio link or audio visual link, the audio link/audio visual link must be either made available to be heard/viewed and heard by members of the public while the hearing is being held or as soon as reasonably practicable afterwards.

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Clause 117 inserts new subsection (4) into section 249 of the Heritage Act 2017. This expressly provides for the Heritage Council to require a person or the person's representative to appear and be heard at a specified time and in a specified manner, being in person at a specified location or by audio link or audio visual link.

Clause 118 amends section 250 of the Heritage Act 2017 to provide that a person who has the right to appear and be heard by the Heritage Council may be self-represented or be represented by another person.

Clause 119 amends section 251 of the Heritage Act 2017 to expressly provide that if a person fails to attend a hearing by audio link or audio visual link, the Heritage Council may make a determination without first hearing from that person.

Part 8—Amendments in relation to exclusion determinations

Clause 120 inserts a definition of the term exclusion determination into section 3(1) of the Heritage Act 2017.

Clause 121 amends section 28 of the Heritage Act 2017. Section 28 sets out the circumstances in which the Executive Director is prevented from accepting nominations of places and objects for inclusion in the Heritage Register.

The amended section 28 provides that the Executive Director cannot accept a nomination under this Division if the Executive Director has made an exclusion determination in relation to the place or object, or part of the place or object, in the preceding 5 years. This restriction will not apply if the Executive Director receives new information relating to the place or object which the Executive Director considers to be of significance and was not available to the Executive Director when making an exclusion determination.

The decision to make or refuse to make an exclusion determination is a reviewable decision. It is intended that the Executive Director would be prevented from accepting a nomination after review rights for an exclusion determination decision have been exhausted.

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Clause 122 inserts new section 34A into the Heritage Act 2017. Section 34A provides that the Executive Director is taken to have accepted a nomination of a place or object or part of a place or object for inclusion in the Heritage Register under Division 2 if either—

• the Executive Director has refused to make an exclusion determination in relation to the place or object or part of the place or object and review rights in relation to the decision to refuse are exhausted; or

• the Heritage Council has refused to make an exclusion determination on review.

New Division 2A empowers the Executive Director and the Heritage Council upon review to refuse to make exclusion determinations in relation to places and objects and parts of places and objects that have reasonable prospects of being included in the Heritage Register. The purpose of this amendment is to deem these places and objects and parts of places and objects to be subject to accepted nominations for inclusion in the Heritage Register. Under section 37, it is open to the Executive Director to go on to either recommend that these places and objects be included in the Heritage Register (in whole or part) or that they not be included in the Heritage Register.

For example, the Executive Director may refuse to make an exclusion determination on the basis that a place has reasonable prospects of inclusion, however after conducting a detailed assessment in relation to that place, the Executive Director may form the view that the place is not of State-level cultural heritage significance and make a recommendation under section 37 to the Heritage Council that the place is not included in the Heritage Register. Conversely, if the Executive Director forms the view that the place is of State-level cultural heritage significance, the Executive Director may make a recommendation under section 37 to the Heritage Council that the place be included in the Heritage Register.

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Clause 123 inserts new Division 2A into Part 3 of the Heritage Act 2017. Entitled "Exclusion determinations" and comprising sections 36A to 36F, Division 2A provides for the making and determination of exclusion determination applications.

New section 36A provides for the making of applications for an exclusion determination. Notably, applications may only be made by prescribed persons or bodies or persons or bodies of a prescribed class, must be prepared by a prescribed person, include the prescribed information and made in the prescribed form, include reasons why the place or object should not be included in the Heritage Register (being reasons based on the assessment criteria published by the Heritage Council) and be accompanied by the prescribed fee (if any).

New section 36B empowers the Executive Director to request further information in relation to an application for an exclusion determination. If the applicant fails to provide the requested information within the timeframe provided for by the legislation, the application is taken to have been withdrawn.

New section 36C provides that the Executive Director must either—

• make an exclusion determination if the Executive Director is satisfied that the place or object has no reasonable prospect of inclusion in the Heritage Register; or

• make an exclusion determination in relation to a part of the place or object if the Executive Director is satisfied that the part of the place or object has no reasonable prospect of inclusion in the Heritage Register; or

• refuse to make an exclusion determination if the Executive Director is not so satisfied (in other words, on the basis that the place or object or part of the place or object has a reasonable prospect of inclusion in the Heritage Register).

This provision also confers a referral power on the Executive Director in relation to places and parts of places for which exclusion determinations have been made. The purpose of this referral power is to allow for these places and parts of places to be considered for local heritage protections under the Planning and Environment Act 1987.

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New section 36D requires the Executive Director to, within 14 days of making an exclusion determination decision, give written notice of the decision to the applicant, the owner of the place or object or part of the place or object, the responsible authority for the area in which the place or object or part of the place or object is situated and if the responsible authority is not a municipal council, the relevant municipal council. In doing so, the Executive Director must provide reasons for the decision and a statement as to review rights.

The Executive Director is also required to, within 14 days of making an exclusion determination in relation to a place or object or part of a place or object, make the exclusion determination and a statement of review rights publicly available in accordance with the requirements of subsection (4). The purpose of these requirements is to provide public transparency and accountability in relation to the making of exclusion determinations.

Section 36E deals with requests for the Heritage Council to review decisions by the Executive Director to make and refuse to make exclusion determinations.

Notably, a person with a real and substantial interest in the place or object or the part of the place or object subject to the exclusion determination can initiate a review within 28 days of the Executive Director giving written notice of the decision. If the place or object or the part of the place or object subject to the exclusion determination was subject to a nomination for inclusion at the time the exclusion determination application was made, it is intended that the term "person who has a real and substantial interest" would be taken to include but not be limited to the nominator of the place or object or the part of the place or object.

Section 36E also confers review rights on applicants for exclusion determinations in cases where the Executive Director refuses to make the exclusion determinations sought.

Section 36F sets out the Heritage Council's powers on review which are to—

• affirm the Executive Director's decision; or

• set aside the Executive Director's decision; or

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• set aside the Executive Director's decision and remit the matter back to the Executive Director for reconsideration.

Clause 124 amends section 40 of the Heritage Act 2017. This is a consequential amendment that applies if a place or object or part of a place or object has been deemed to be an accepted nomination pursuant to section 34A and the Executive Director has recommended that the place or object or the part of the place or object be included in the Heritage Register. The amended provision requires, in the case of a nomination that the Executive Director is taken to have accepted under section 34A(1), the Executive Director to give a statement of recommendation to the applicant for the exclusion determination and also requires the statement of recommendation to advise the applicant for the exclusion determination of sections 46 and 49 of the Act (which deal with the Heritage Council's consideration and determination of recommendations).

Clause 125 inserts new section 306 into the Heritage Act 2017. A transitional provision, new section 306 applies to nominations made but not determined before the commencement of the amending legislation where the Executive Director has not made a section 37 recommendation in relation to the nomination. New section 306 provides that where an exclusion determination application covering all or any part of the place or object that is the subject of the nomination is made, the nomination is taken to be withdrawn to the extent that it overlaps with the exclusion determination application.

Nominations for which a section 37 recommendation have not been made are at a less advanced stage in the nomination determination process. It is considered appropriate that where an exclusion determination application is made in relation to a place or object that is subject to such a nomination, that the new exclusion determination process would apply.

Part 9—General amendments to the Heritage Act 2017

Clause 126 inserts definitions of the following terms into section 3(1) of the Heritage Act 2017

building permit;

business day;

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planning permit;

show cause notice;

statement of recommendation period.

The clause also amends the definition of relevant survey purpose and repeals the definition of sea.

Clause 127 repeals section 15(1)(d) of Heritage Act 2017. The purpose of this amendment is to allow the Heritage Council to delegate the power to remove sites from the Heritage Inventory.

Clause 128 amends the heading to section 27 of the Heritage Act 2017. This Bill makes a number of amendments to the nomination provisions in Part 3 of the Heritage Act 2017. This clause is a consequential amendment necessary to reflect these amendments.

Clause 129 inserts sections 27A and 27B into the Heritage Act 2017.

Section 27A re-enacts (with minor drafting revisions) section 31 of the Heritage Act 2017 and provides for the nomination of objects integral to places for inclusion in the Heritage Register. The purpose of this provision is to apply sections 28, 29 and 30 of the Heritage Act 2017 to nominations of objects integral to places. Clause 133 works in tandem with this amendment and repeals section 31 of the Heritage Act 2017.

Section 27B re-enacts section 32 of the Heritage Act 2017 and provides for the nomination of additional land for inclusion in the Heritage Register. The purposes of this provision are to—

• apply sections 28, 29 and 30 of the Heritage Act 2017 to nominations of additional land, and

• allow for nominations of additional land to be made with respect to places that have been nominated for inclusion in the Heritage Register.

Clause 133 works in tandem with this amendment and repeals section 32 of the Heritage Act 2017.

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Clause 130 amends section 28 of the Heritage Act 2017. Section 28 sets out the circumstances in which the Executive Director is prevented from accepting nominations of places and objects for inclusion in the Heritage Register. The clause expands the scope of section 28 to include additional land and objects integral nominated in accordance with sections 27A and 27B of the Heritage Act 2017.

The amended section 28 provides that the Executive Director cannot accept a nomination for a place, object (including an object integral) or additional land if in the preceding 5 years—

• the Executive Director has, in accordance with section 29, refused a nomination in relation to the same or substantially the same place, object or land on the basis that the nominated place, object or land has no reasonable prospect of inclusion in the Heritage Register, or

• the Heritage Council has refused to register the place or object or refused to include the land on the Heritage Register as part of a registered place or amended the Heritage Register to remove the land from a registered place, or

• the Minister has refused to register the place or object or include the land in the Heritage Register as part of a registered place.

Clause 121 also makes amendments to section 28 of the Heritage Act 2017.

Clause 131 amends section 29 of the Heritage Act 2017. Section 29 empowers the Executive Director to refuse a nomination of a place or object if the Executive Director considers that the nominated place or object has no reasonable prospect of inclusion in the Heritage Register. The clause expands the scope of section 29 to include additional land and objects integral nominated in accordance with sections 27A and 27B of the Heritage Act 2017.

The amended section 29 provides that the Executive Director may refuse a nomination of a place, object or land if the Executive Director considers that the nominated place, object or land has no reasonable prospect of inclusion in the Heritage Register.

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The clause also introduces a new requirement for the Executive Director to notify owners of places, objects and land of nomination refusals.

Clause 132 amends section 30 of the Heritage Act 2017. Section 30 provides for the review of decisions made by the Executive Director under section 29 to refuse nominations. The clause expands the scope of section 30 to provide for the review of refusals of nominations of objects integral and additional land.

The clause also repeals section 30(6), which requires the Heritage Council to remit a matter for reconsideration when new information that is material is provided by the applicant. The purpose of this amendment is to accord the Heritage Council discretion in determining whether the new information warrants remittal.

The clause also introduces a new requirement for the Heritage Council to notify specified parties of the outcome of section 30 reviews.

Clause 133 repeals sections 31 and 32 of the Heritage Act 2017. This clause works in conjunction with clause 129, which re-enacts sections 31 and 32 with amendments.

Clause 134 amends section 33 of the Heritage Act 2017. Section 33 empowers the Executive Director to request further information in relation to nominations of places and objects. The clause amends section 33 to refer to "nominations under this Division". The purpose of these amendments is to expand the Executive Director's power to request further information to include nominations of objects integral and additional land.

Clause 135 amends section 34 of the Heritage Act 2017. Section 34 requires the Executive Director to give written notice of the acceptance of a nomination. The clause amends section 34 to require the Executive Director to give written notice of the acceptance of nominations of object integral and additional land.

Clause 136 amends section 35 of the Heritage Act 2017 to include references to land. The purpose of this provision is to apply section 35 to objects integral and additional land nominated in accordance with sections 27A and 27B.

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Clause 137 amends section 36 of the of the Heritage Act 2017 to include references to land. The purpose of this provision is to apply section 36 to objects integral and additional land nominated in accordance with sections 27A and 27B.

Clause 138 substitutes a new section 37 into the Heritage Act 2017. Section 37 deals with Executive Director recommendations to the Heritage Council in respect of nominations made under Division 2 of Part 3. The amended provision sets out the different types of recommendations the Executive Director may make to the Heritage Council, including recommendations in relation to additional land.

Clause 139 amends section 38 of the Heritage Act 2017 to include references to land. The purpose of this provision is to apply section 38 to objects integral and additional land recommended for inclusion in the Heritage Register.

Clause 140 amends section 40 of the Heritage Act 2017. Section 40 requires the Executive Director to give a statement of recommendation to specified parties on making a recommendation to the Heritage Council under section 37. The amended provision applies to places, objects, objects integral and additional land and details the information that must be included in statements of recommendation in relation to places, objects, objects integral and additional land.

Clause 124 also makes amendments to section 40 of the Heritage Act 2017.

Clause 141 amends section 41 of the Heritage Act 2017 to include references to land. The purpose of this provision is to apply section 41 to objects integral and additional land nominated in accordance with sections 27A and 27B.

Clause 142 amends section 42 of the Heritage Act 2017 to incorporate references to land.

The clause also repeals section 42(3), (4), (5), (6), (7), (8) and (9). These provisions are re-enacted in an amended form in section 42A, 42B, 42C and 42D, inserted by clause 143.

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Clause 143 inserts sections 42A, 42B, 42C and 42D into the Heritage Act 2017.

Section 42A re-enacts section 42(3) and (4) with amendments that expand the obligation to notify the Executive Director to include owners of objects integral and additional land and clarify the circumstances in which the notification obligation arises. Section 42B re-enacts section 42(5) and (6) with amendments that expand the obligation to notify the Executive Director to include owners of objects integral and additional land.

Section 42C re-enacts section 42(7) and (8) in an amended form. These amendments are intended to expand the obligation to notify the Executive Director to include owners of objects integral and additional land and also clarify the circumstances in which the obligation to notify the Executive Director arises.

Section 42D re-enacts section 42(9) in an amended form. These amendments are intended to expand the obligation to notify the Executive Director to include owners of objects integral and additional land and also clarify the circumstances in which the obligation to notify the Executive Director arises.

Clause 144 amends section 43 of the Heritage Act 2017 to incorporate references to land and reflects the changes made by clauses 142 and 143. Section 43 provides that breach of an obligation under sections 42, 42A, 42B, 42C or 42D is an offence.

Clause 145 amends section 44 of the Heritage Act 2017 to incorporate references to land. The clause also sets out what submissions in relation to places and objects nominated under section 27, objects integral nominated under section 27A and additional land nominated under section 27B must relate to.

Clause 146 repeals subsections (2) and (3) from section 46 of the Heritage Act 2017. Section 46 now deals solely with the Heritage Council's consideration of submissions.

Clause 147 inserts section 46A into the Heritage Act 2017, which deals with Heritage Council hearings in relation to recommendations made by the Executive Director under sections 37, 38 and 39. Section 46A sets out the circumstances in which the Heritage Council may conduct hearings in relation to these recommendations and circumstances in which the Heritage Council must conduct hearings.

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Clause 148 amends section 48 of the Heritage Act 2017 to incorporate references to land.

Clause 149 amends section 49 of the Heritage Act 2017, which deals with the Heritage Council's determination of recommendations that places, objects and land be included in the Heritage Register. The amendments made by the clause reflect the amendments made to the Heritage Act 2017 in relation to objects integral and additional land and also require the Heritage Council to include statements of reasons for the making of determinations under section 49.

Clause 150 inserts section 49A into the Heritage Act 2017. This provision requires the Heritage Council to give written notice of determinations made by the Heritage Council and of any works or activities which the Heritage Council has determined under section 49(3) may be carried out in relation to a place, object or land without a permit issued under Part 5 to the owner or government asset manager and the Executive Director. This provision re-enacts the obligation contained in section 55, which will be repealed by clause 154.

Clause 151 amends section 50 of the Heritage Act 2017 to replace an erroneous reference to section 39 with a reference to section 49 and clarify the Heritage Council's obligations in relation to a Ministerial direction made under section 50(1).

Clause 152 inserts section 52A into the Heritage Act 2017. This provision requires the Minister to give written notice of any determination made by the Minister under section 52 and of works or activities which the Minister has determined under section 52 may be carried out in relation to a place, object or land without a permit issued under Part 5 to the owner or government asset manager and the Executive Director.

Clause 153 amends section 53 of the Heritage Act 2017 to incorporate references to additional land.

Clause 154 repeals section 55 of the Heritage Act 2017. As noted at clause 150, section 49A re-enacts the obligation contained in section 55 in an amended form.

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Clause 155 amends section 58 of the Heritage Act 2017, which deals with heritage certificates. These amendments provide for the inclusion of information regarding nominations and exclusion determination applications in heritage certificates issued by the Executive Director. The purpose of these amendments is to assist recipients of heritage certificates to understand the status of any nomination or exclusion determination processes applying in relation to the places and objects to which the certificates relate.

Clause 156 amends section 73 of the Heritage Act 2017. Section 73 makes it an offence for a person to remove a registered shipwreck, historic shipwreck, registered shipwreck artefact or historic shipwreck artefact from Victoria other than in accordance with the terms and conditions of a permit issued under section 77. The clause amends section 73 to provide that the offence also does not apply to actions required under section 72.

Clause 157 amends section 80 of the Heritage Act 2017 to substitute references to "finds" and "found" with "discovers" and "discovered". The purpose of this amendment is to align the language used in section 80 with that used in other provisions of the Act. For example, Part 6 refers to the "discovery" of archaeological sites.

Clause 158 amends section 87 of the Heritage Act 2017. Section 87 sets out offences in relation to knowingly or recklessly performing certain activities in relation to registered places and registered objects. The clause amends section 87 to provide that these offences do not apply to works or activities carried out in accordance with—

• permits issued under Part 4; or

• show cause notices; or

• repair orders; or

• rectification orders.

Clause 159 amends section 88 of the Heritage Act 2017. Section 88 sets out offences in relation to negligently performing certain activities in relation to registered places and registered objects. The clause amends section 88 to provide that these offences do not apply to works or activities carried out in accordance with—

• permits issued under Part 4; or

• show cause notices; or

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• repair orders; or

• rectification orders.

Clause 160 amends section 89 of the Heritage Act 2017. Section 89 sets out offences in relation to performing certain activities in relation to registered places and registered objects. The clause amends section 89 to provide that these offences do not apply to works or activities carried out in accordance with—

• permits issued under Part 4; or

• show cause notices; or

• repair orders; or

• rectification orders.

Clause 161 amends section 90 of the Heritage Act 2017, which allows for alterations to be made to certain registered places and registered objects without a permit for the purpose of religious services or rites where the owner has complied with the notice requirements set out in subsections (3) and (4). The clause—

• replaces references to "alterations" with references to "works or activities", a term that is used throughout the Act; and

• requires owners to notify the Executive Director (instead of the Heritage Council) at least 20 business days before the commencement of works or activities; and

• empowers the Executive Director to determine that a permit is required in order for the works or activities to lawfully proceed in circumstances where the Executive Director is not satisfied that the proposed works or activities are for the purposes of religious rites or services and requires the Executive Director to notify an owner of such a determination within 15 business days of receiving a notice of proposed works and activities.

The purpose of these amendments is to subject proposed works or activities that are not considered to be for the purposes of religious rites or services to the scrutiny associated with the permit application process.

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Clause 162 inserts section 90A into the Heritage Act 2017. Section 90A complements the amendments to section 90 and empowers the Executive Director to request additional information from the owner in relation to proposed works or activities to assist the Executive Director in determining whether the proposed works or activities are for the purposes of religious rites or services. Notably, if the owner fails to provide the information requested, section 90 will cease to provide lawful authority for an owner to carry out works or activities without a permit. Section 90A makes provision for owners to seek and be granted an extension of time within which to provide additional information to the Executive Director.

Clause 163 substitutes a new section 91 into the Heritage Act 2017. The amended section 91 provides that a person may cause land to be subdivided or consolidated without a permit issued under Part 5 if the subdivision or consolidation is in accordance with a planning permit and the planning permit application was referred to the Executive Director as a determining referral authority under that Act.

The purpose of this amendment is to confine the scope of the permit exemption to apply only to subdivisions and consolidations done in accordance with planning permits where the application for the planning permits were referred to the Executive Director as the determining referral authority under the Planning and Environment Act 1987. See clause 126 of the Bill which inserts a definition of planning permit into the Heritage Act 2017.

Clause 164 amends section 92 of the Heritage Act 2017. Section 92(3) provides that the Executive Director, on the application of the owner of a registered place or registered object may determine that a permit is not required for particular works or activities in relation to the place or object. This Bill amends section 92 to empower the Executive Director to amend or revoke a determination made under subsection (3) if, at the time of the amendment or revocation, the Executive Director considers the works or activities may harm the cultural heritage significance of the registered place or registered object. Section 92(7) requires the Executive Director to give written notice to the affected owner within 5 business days.

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For example, the Executive Director may exercise the power to amend or revoke a permit exemption determination where heritage conservation practice has changed since the determination was made and the works and activities exempted by the determination are no longer considered suitable for exemption.

The clause also consequentially amends subsection (4) to provide specified works or activities are to be carried out in accordance with a determination as made or amended by the Heritage Council or Executive Director.

Clause 165 inserts new subsection (3A) into section 93 of the Heritage Act 2017. Section 93(3) provides that if the applicant for a permit is not the owner or government asset manager of the registered place or registered object, the applicant must obtain the owner or government asset manager's written consent to apply for a permit. Subsection (3A) qualifies this requirement where the works or activities relate to only part of a registered place or registered object to only require permit applicants to obtain the written consent of the owner or government asset manager of that part of the registered place or registered object.

Clause 166 makes a number of amendments to section 96 of the Heritage Act 2017. The clause—

• amends the heading to section 96 to reflect that the provision applies to permit application amendments initiated by the permit applicant; and

• replaces the reference to "land" with "registered place or registered object" in subsection (3)(c) so it provides that the applicant for a permit application amendment must obtain the written consent of the owner or government asset manager of the registered place or registered object in respect of which the permit application applies if the applicant is not the owner or government asset manager; and

• inserts new subsection (3A), which qualifies the requirement in subsection (3)(c) where the works or activities relate to only part of a registered place or registered object. In these circumstances, applicants for permit application amendments are only required to obtain the written consent of the owner or government

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asset manager of that part of the registered place or registered object; and

• amends subsection (4) to require the Executive Director to either agree to or refuse a permit amendment request within 20 business days of receiving the request; and

• inserts new subsection (4A), which requires the Executive Director to notify the applicant within 5 business days of the decision to either agree to or refuse the permit amendment request; and

• repeals subsection (5). The obligation set out in this subsection is re-enacted in section 96B (inserted by clause 167); and

• inserts new subsection (7), which provides that the period within which the Executive Director must agree to or refuse a request stops to run when a direction is given to the applicant in relation to the publication or notification of the amended permit application and resumes when information regarding compliance with the direction is provided to the Executive Director.

Clause 167 inserts new sections 96A and 96B into the Heritage Act 2017. Section 96A(1) empowers the Executive Director to initiate amendments to permit applications in circumstances where the Executive Director considers that the amendment would assist with the protection or conservation of the cultural heritage significance of the registered place or registered object. In order to amend a permit application, the Executive Director must obtain the written consent of the permit applicant and, if the applicant is not the owner or government asset manager, the owner or government asset manager of the registered place or registered object in respect of which the permit application applies.

Section 96A(2) provides that the Executive Director may exercise the power to amend a permit application before or after any notice of the application is publicly displayed under section 94.

Section 96A(3) provides that if the Executive Director amends a permit application after notice of the application has been publicly displayed under section 94, the Executive Director must notify any person who made a written submission in relation to

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the application and may give directions to the applicant in relation to the publication and notification of the amended permit application.

Section 96B re-enacts section 96(5), which is repealed by clause 166. This provision requires the Executive Director to, as soon as practicable after a permit application is amended in accordance with either section 96 or 96A, give a copy of the amended permit application to the responsible authority for the area in which the registered place is situated and if the responsible authority is not a municipal council, the relevant municipal council.

Clause 168 amends section 97 of the Heritage Act 2017 to replace references to "60 days" with references to "45 business days" and require the Executive Director to notify a permit applicant within 5 business days of obtaining an extension of time to determine a permit application from the Heritage Council.

Clause 169 amends section 98 of the Heritage Act 2017 to align the language of subsection (2)(a) with that of section 90A(2)(a) (inserted by clause 162) and replace references to calendar days with references to business days.

Clause 170 amends section 99 of the Heritage Act 2017. The clause inserts new paragraph (ba) which provides that the time within which the Executive Director must determine a permit application stops when a permit applicant requests an amendment to a permit application and resumes when the Executive Director makes a decision in relation to the permit application amendment request.

The clause also provides that the time within which the Executive Director must determine a permit application stops when the Executive Director directs a permit applicant under section 96A(3)(b) in relation to the publication or notification of a permit application amendment initiated by the Executive Director and resumes when information regarding compliance with the direction is provided to the Executive Director.

Clause 171 amends section 100 of the Heritage Act 2017 to—

• replace the reference to "14 days" in subsection (1) with a reference to "10 business days"; and

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• revise the timeframe within which responsible authorities or municipal councils may make written submissions to the Executive Director from 14 days to 20 business days; and

• provide that the Executive Director may accept submissions lodged outside the time period set out in subsection (3).

Clause 172 amends section 101 of the Heritage Act 2017. These amendments bring the language used in section 101 into alignment with that used in sections 102 and 102A (inserted by clause 174). For example, all of these provisions as amended will refer to the Executive Director approving "part of an application".

Clause 173 inserts new section 101A into the Heritage Act 2017. The clause re-enacts section 103 (repealed by clause 175) in an amended form.

Section 101A(1) empowers the Executive Director to, in approving a permit application (in whole or part), to impose a term or condition on the permit that requires a security be given to the Heritage Council to ensure either the satisfactory completion of the works or activities for which the permit is issued or compliance with another condition imposed on the permit.

Section 101A(2) sets out the matters that the Executive Director must have regard to in determining the form and content of a security.

Section 101A(3)(a) empowers the Heritage Council to pay out a security received pursuant to subsection (1) out of the Heritage Fund to fund the satisfactory completion of the works or activities in respect of which the security was given in accordance with the terms and conditions of the permit. For example, if a permit holder fails to satisfactorily complete works and activities in accordance with the permit, this provision would empower the Heritage Council or Executive Director to engage a third party to satisfactorily complete the works or activities. Further, section 101A(3)(b) empowers the Heritage Council to make a security received pursuant to subsection (1) available to the Executive Director under section 159(2). This provision allows the Executive Director to use the security to pay for the

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works or activities carried out or caused to be carried out pursuant to a repair order.

Section 101A(4) requires the Heritage Council to return a security (or the remainder of any security partially paid out under subsection (3)) to a person if the works or activities are completed or the permit condition is complied with.

Clause 174 substitutes a new section 102 into the Heritage Act 2017 and inserts sections 102A and 102B. The clause separates the Executive Director's obligations after determining permit applications into separate provisions.

Section 102 requires the Executive Director to issue a permit within 5 business days of making a determination to approve an application or part of an application.

Section 102A requires the Executive Director to notify permit applicants within 5 business days of determining to approve only part of an application under section 101(1)(a), or of refusing an application under section 101(1)(b), of the refusal. In issuing notice to applicants, the Executive Director must provide a statement of reasons and information about the applicant's rights to seek review of the Executive Director's decision.

Section 102B requires the Executive Director to notify persons who made submissions in relation to a permit application and the responsible authority for the area in which the registered place or registered object is situated and the relevant municipal council (if the responsible authority is not a municipal council) of the outcome of a permit determination within 5 business days.

Clause 175 repeals section 103 of the Heritage Act 2017. Section 103 is re-enacted in an amended form (as section 101A) by clause 173.

Clause 176 amends section 104 of the Heritage Act 2017 to substitute "this Part" for "section 102".

Clause 177 makes a number of amendments to section 105 of the Heritage Act 2017.

Subsection (3) requires a permit holder who is not the owner or government asset manager of a registered place or registered object to obtain the written consent of the owner or government asset manager before making a permit amendment request. The clause inserts subsection (3A), which qualifies the requirements

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in subsection (3) where the works or activities for which the permit amendment is sought relate to only part of a registered place or registered object. In these circumstances, applicants for a permit amendment are only required to obtain the written consent of the owner or government asset manager of that part of the registered place or registered object.

The clause also—

• amends subsection (4) to require the Executive Director to issue notifications within 5 business days;

• inserts subsection (5) to require the Executive Director to agree to (in whole or part) or refuse a permit amendment request within 20 business days of receiving the request;

• inserts subsection (5A) to provide that the 20 business day period within which the Executive Director must agree to or refuse a permit amendment requests stops when the Executive Director requests additional information under section 105A(1) and recommences when the additional information is provided to the Executive Director;

• inserts subsection (9) to require the Executive Director to notify specified parties within 5 business days of agreeing to or refusing to amend a permit; and

• inserts subsection (10) to require the Executive Director to issue an amended permit within 5 business days of agreeing to a permit amendment request.

Clause 178 inserts new sections 105A and 105B into the Heritage Act 2017. Section 105A empowers the Executive Director to request additional information from the permit holder in relation to a permit amendment application to assist the Executive Director in determining whether to agree to or refuse the permit amendment request. Notably, if the permit holder fails to provide the information requested, their permit amendment request lapses.

Section 105A makes provision for permit holders to seek and be granted an extension of time within which to provide additional information to the Executive Director.

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Section 105B establishes a new process for minor permit amendments. This process is initiated by permit holders by way of request to the Executive Director in the prescribed form with the written consent of the owner or government asset manager of the registered place or registered object or the part of the registered place or registered object to which the minor permit amendment is sought. The Executive Director is required to agree to a request (in whole or part) or refuse a request within 20 business days of receiving the request and to notify specified parties within 5 business days. Notably, the Executive Director must refuse a minor permit request if the Executive Director considers that the requested amendment is not minor and should be amended under section 105 or is so substantial that a new permit application is necessary and may refuse a minor permit request if the Executive Director considers that the requested amendment may result in harm to the cultural heritage significance of the registered place or registered object.

Clause 179 amends section 106 of the Heritage Act 2017, which provides for the review of Executive Director permit determinations.

Subsection (2) provides that a permit applicant or the owner or government asset manager of a registered place or registered object may, by way of written request, seek the Heritage Council's review of a determination by the Executive Director to impose a condition on a permit.

The clause inserts new subsection (2A) which provides that if a permit only applies to part of a registered place or registered object, that only the permit applicant, owner or government asset manager of that part of the place or object may request a review under subsection (2).

The clause also inserts new paragraphs (aa) and (aab) into subsection (5). The effect of this amendment is to require the Heritage Council to notify the Executive Director and the applicant (if the person requesting the review is not the applicant) upon receiving a request for review.

Subsection (5)(a) requires the Heritage Council to notify the owner or government asset manager of a registered place or registered object (if the person requesting the review is not the owner or government asset manager) upon receiving a request for review.

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The clause inserts new subsection (6), which qualifies the requirement in subsection (5)(a). Subsection (6) provides that if the review relates to only part of a registered place or registered object, the Heritage Council is only required to notify the owner or government asset manager of that part of the place or object (if the person requesting the review is not the owner or government asset manager).

Clause 180 amends section 108 of the Heritage Act 2017, which deals with the determination of reviews by the Heritage Council. These amendments—

• amend subsection (4) to clarify that the reference to "the applicant" is a reference to the "applicant for review"; and

• inserts new subsection (4A) to provide that the Executive Director may appear, be heard or be represented at review hearings; and

• amends subsection (8) to provide that the Heritage Council may consider the matters set out in section 101(3) in determining a review; and

• substitutes a new subsection (9), which requires the Heritage Council to notify specified parties within 5 business days of making a determination under subsection (7); and

• inserts new subsection (10), which requires the Executive Director to issue a permit to the permit applicant within 5 business days of being notified by the Heritage Council that it has made a determination that requires a permit or amended permit to be issued.

Clause 181 amends section 109 of the Heritage Act 2017 to provide that—

• in determining a review under subsection (3), the Minister may consider the matters set out in section 101(3), and

• in determining a review under subsection (4), VCAT may consider the matters set out in section 101(3).

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Clause 182 inserts section 112A into the Heritage Act 2017, which requires the Executive Director to issue a permit within 5 business days of being notified by VCAT of a determination that requires the issuing of a permit or an amended permit.

Clause 183 substitutes a new subsection (1)(a) into section 113 of the Heritage Act 2017. This amendment extends the opportunity to be heard by and make submissions to the Heritage Council under section 113(a) to the parties afforded standing at section 108 review hearings.

Clause 184 amends section 114 of the Heritage Act 2017 to require the Executive Director to issue a permit to the applicant within 5 business days of the Minister making a determination that requires a permit or amended permit to be issued.

Clause 185 inserts new section 118A into the Heritage Act 2017. Section 118A requires the Executive Director to, within 20 business days of being provided with a site card in accordance with section 127, determine to either record the archaeological site in the Heritage Inventory or that the archaeological site has low archaeological value. The Executive Director may request additional information to assist in making the determination and must notify specified parties within 5 business days of making the determination.

Clause 186 substitutes a new section 119 into the Heritage Act 2017. Section 119 currently empowers the Heritage Council to remove a site from the Heritage Inventory if the Executive Director determines that the site has low archaeological value. The amended provision expands the range of circumstances in which the Heritage Council may remove a site from the Heritage Inventory to also include—

• if the Executive Director determines that inclusion in the Heritage Inventory as a registered place is sufficient to protect and conserve the site and inclusion in the Heritage Inventory is no longer necessary,

• as part of the amalgamation of 2 or more sites in the Heritage Inventory,

• if the site is not an archaeological site.

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Clause 187 amends section 120 of the Heritage Act 2017 to require the Executive Director to notify government asset managers of the recording or removal of sites in or from the Heritage Inventory.

Clause 188 substitutes a new section 123 into the Heritage Act 2017. The clause re-enacts section 123 (which sets out offences that apply to archaeological sites) with amendments. These amendments reflect revisions made to Part 6 by this Bill. For example, clause 189 inserts new section 123A, which is referenced in the amended section 123.

Clause 189 inserts new section 123A into the Heritage Act 2017. This provision empowers the Executive Director to exempt specified persons from the requirement to obtain a consent in order to carry out works and activities in relation to sites recorded in the Heritage Inventory and archaeological artefacts.

Clause 190 amends section 124 of the Heritage Act 2017. These amendments—

• limit the Executive Director's ability to consider and issue consents in relation to archaeological sites which are not recorded in the Heritage Inventory. This amendment reflects the fact that the Executive Director does not usually have sufficient information about archaeological sites which are not recorded in the Heritage Inventory to be able to determine the impact of any disturbance associated with issuing a consent; and

• clarify that if the applicant is not the owner or government asset manager of the site or archaeological artefact that consent applications are to be made with the consent of the owner or government asset manager; and

• require the Executive Director to determine consent applications within 20 business days and issue consents within 5 business days of an approval; and

• empower the Heritage Council to grant the Executive Director an additional 20 business days within which to determine a consent application; and

• empower the Executive Director to consider but not determine consent applications which the Executive Director considers to be urgent. The Executive Director

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is able to determine applications once a site is either recorded in the Heritage Inventory or been determined to have low archaeological value; and

• substitute a reference to "found" with "discovered" to align the language used in section 124 with that used in other provisions of the Act. For example, section 80 as amended refers to "discovers" and "discovered" instead of "finds" and "found".

Clause 191 inserts new sections 124A, 124B and 124C into the Heritage Act 2017.

Section 124A provides for the amendment of consents issued under section 124. The provision sets out the process for applying for, determining and issuing consent amendments. Notably, the Executive Director must approve consent amendment applications (in whole or part) or refuse applications within 20 business days of receipt.

Section 124B empowers the Executive Director to request additional information in relation to consent and consent amendment applications. Notably, consent and consent amendment applications lapse if additional information is not provided by the applicant within the statutory timeframe.

Section 124C provides that the period within which the Executive Director must determine a consent or consent amendment application stops when the Executive Director requests additional information under section 124B and resumes when that information is provided to the Executive Director.

Clause 192 replaces the reference to "section 124" in section 125 of the Heritage Act 2017 with a reference to "this Part". This is a consequential amendment which reflects the fact that the amended Act will also provide for the issuing of amended consents (refer to section 124A which is inserted by clause 191).

Clause 193 amends section 126 of the Heritage Act 2017. The amendment inserts new subsection (9), which requires the Executive Director to issue a consent within 5 business days of the Heritage Council making a determination under section 126(5)(b) to set aside an Executive Director's determination and substitute it with a determination to issue a consent.

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Clause 194 inserts new section 126A into the Heritage Act 2017. An offence provision, section 126A requires a person who intends to undertake an investigation or survey of land for the purpose of discovering an archaeological site to notify the Executive Director of this intention before commencing the investigation or survey. Breach of this obligation is punishable by up to 60 penalty units for natural persons and 240 penalty units for bodies corporate.

Clause 195 amends section 127 of the Heritage Act 2017 to introduce new obligations in relation to the giving of survey reports to the Executive Director. Failure to comply with these obligations is an offence.

Clause 196 amends section 133 of the Heritage Act 2017. Subsection (3) currently requires the Heritage Council to notify specified parties after the Heritage Council has approved a recommendation for a site of archaeological value. The clause broadens this notification requirement to apply to any determination made by the Heritage Council under subsection (1).

Clause 197 inserts new section 139A into the Heritage Act 2017. This provision requires owners to make an application under section 140 as soon as possible after entering into a covenant or agreement to vary a covenant for notice of the covenant or variation to be recorded by the Registrar of Titles. The legislation currently allows for owners to make section 140 applications to the Registrar of Titles. The purpose of this amendment is to expressly impose an obligation on owners to do so.

Clause 198 makes a number of amendments to section 154 of the Heritage Act 2017. These amendments—

• provide that the Executive Director may issue a show cause notice in relation to works and activities (instead of just works); and

• remove the requirement for the Executive Director to seek the Heritage Council's consent to issue a show cause notice; and

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• allow for the Executive Director to issue a show cause notice on any or all of the owners whom the Executive Director considers has contravened section 152 or 153 in circumstances where a registered place or registered object has multiple owners.

The purpose of these amendments is to address issues that have arisen in practice with the operation of section 154.

Clause 199 amends section 155 of the Heritage Act 2017 to include references to "activities". The purpose of this amendment is to extend the operation of section 155 to both works and activities.

Clause 200 amends section 159 of the Heritage Act 2017 to include references to "activities" and empowers the Heritage Council to make a security available to the Executive Director for the cost of carrying out works or activities required by a repair order. This amendment—

• extends the operation of section 159 to both works and activities; and

• provides an express power for the Heritage Council to make funds available for the Executive Director to execute repair orders where owners have failed to comply with the orders.

Clause 201 substitutes a new subsection (4) into section 201 of the Heritage Act 2017. This amendment empowers an inspector or authorised person to enter an unoccupied residence if either the owner of the residence has given written consent to the entry or in the absence of written consent, after 2 days' clear notice has been given to the owner of the residence. Subsection (4) as amended also continues to provide for entry into occupied residences with the consent of the occupier.

The purpose of this amendment is to address issues that have arisen in practice when inspectors have sought to gain access to unoccupied residential premises.

Clause 202 amends section 234(2)(b) of the Heritage Act 2017 to substitute "section 101A" for "section 103". This is a consequential amendment related to amendments made by clauses 173 and 175.

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Clause 203 inserts a new part heading, for Part 11A, into the Heritage Act 2017. The purpose of this amendment is to provide for sections 243, 244 and 245 (which deal with special assistance for owners of registered places and registered objects) to be situated in a Part of the Act dealing with special assistance.

Clause 204 amends section 244 of the Heritage Act 2017. This is a statute law revision amendment that removes a typographical error from subsection (4).

Clause 205 inserts Division 3 into Part 14 of the Heritage Act 2017. Comprising new sections 294–305, Division 3 contains transitional provisions necessary to give effect to the amendments made by Part 9. Notably—

• section 296 deals with nominations made and not determined before the commencement of the amending legislation and provides that nominations subject to a section 37 recommendation will be determined in accordance with the unamended legislation whereas those not subject to a section 37 recommendation will be determined in accordance with the amended legislation, and

• section 299 provides that Part 5 permit applications (including permit amendment applications) made but not determined prior to the commencement of the amending legislation are to be determined in accordance with the unamended legislation.

Part 10—Amendments to Planning and Environment Act 1987

Division 1—Green wedge management plans

Clause 206 inserts a definition of the term green wedge management plan into section 3(1) of the Planning and Environment Act 1987.

Clause 207 inserts Division 2 into Part 3AA of the Planning and Environment Act 1987. Entitled "Green wedge management plans" and comprising new sections 46AD to 46AEC, Division 2 gives effect to an election commitment to provide for metropolitan green wedge protections in legislation.

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New section 46AD sets out the objectives of Division 2. These are—

• to recognise the importance of green wedge land; and

• to protect, enhance and promote non-urban values and non-urban uses of green wedge land, and to give primacy to those values and uses; and

• to enable strategic planning for and management of green wedge land; and

• to provide for the beneficial use of green wedge land that contributes to the sustainability, prosperity, health and wellbeing of Victorians; and

• to support primary production on green wedge land and to enable its growth by preventing incompatible uses and development; and

• to manage threats of land use change that would detract from non-urban uses of green wedge land; and

• to recognise the connection and stewardship of traditional owners in relation to land that is green wedge land.

Examples of non-urban values and land uses referred to in the objectives include values and uses associated with—

• natural areas that contribute to biodiversity and conservation; and

• the protection of significant landscapes, geographical features and natural landforms; and

• the protection of Aboriginal living cultural and spiritual heritage and post-European settlement cultural heritage; and

• parks and open space; and

• forestry, agricultural production and food supply; and

• waterways, water catchments and supply; and

• extractive resources and other natural resources.

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Examples of beneficial uses of green wedge land include uses associated with—

• the development and operation of major infrastructure assets, including wastewater treatment plants, waste management and resource recovery facilities, airports and flightpaths, and major transport linkages and infrastructure; and

• energy generation, transmission and storage, including supporting renewable energy sources such as wind and solar; and

• tourism and recreation linked to natural environments, cultural heritage and agricultural activities; and

• rural industries and extractive industries that support the continuing non-urban role of green wedge land.

Examples of threats of land use change that would detract from non-urban uses of green wedge land include uses associated with—

• climate change and natural hazards (such as bushfire, drought and flooding); and

• population growth, urban expansion and development; and

• rural residential development; and

• pressure for land use change at the urban-rural interface.

New section 46AE introduces a legislative requirement for the municipal councils listed in section 46AA of the Planning and Environment Act 1987 to prepare green wedge management plans. Subsections (2) and (3) require municipal councils to prepare green wedge management plans in accordance with any directions issued by the Minister under new section 46AEA and to provide completed plans to the Minister.

New section 46AEA contains the Minister's power to issue directions in relation to the preparation and content of green wedge management plans. It is anticipated that the Minister will issue such directions in the form of a planning practice note.

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New section 46AEB empowers the Minister to require a municipal council to prepare a revised green wedge management plan if the council's green wedge management plan is more than 10 years old. This provision reflects the fact that a number of municipal councils have already prepared green wedge management plans and it is not intended that those with plans that are less than 10 years old be required to prepare new plans when the legislative requirement to prepare a plan is introduced.

New section 46AEC empowers the Minister to exempt a municipal council from the requirement to prepare a green wedge management plan. The Minister is required to publish an exemption declaration in the Government Gazette.

Division 2—Amendments in relation to distinctive areas and landscapes

Clause 208 amends section 46AX of the Planning and Environment Act 1987 by inserting new subsections (1A), (3) and (4).

Section 46AX deals with the endorsement of draft Statements of Planning Policy. Subsection (1) provides that the Minister must give a copy of a draft Statement of Planning Policy for a declared area to each responsible public entity specified in the Statement for endorsement by the entity and the Minister responsible for that entity. New subsection (1A) qualifies this requirement and provides that the Minister is not required to give a copy of a draft Statement of Planning Policy to a responsible public entity or the Minister responsible for the entity if the Minister has made a declaration under section 46AXA in relation to that entity. New subsection (3) requires responsible public entities that are given a draft Statement of Planning Policy to decide whether to endorse it within 28 days of receiving the draft Statement. New subsection (4) requires responsible public entities that are given a draft Statement of Planning Policy to notify the Minister of a decision to endorse or not endorse a draft Statement within 7 days of making the decision.

These amendments are intended to address issues that have arisen with the endorsement of Statements of Planning Policy. By virtue of section 46AT, a declaration that an area is a distinctive area lapses if a Statement of Planning Policy for the declared area is not endorsed in accordance with section 46AX and approved in accordance with section 46AY within a year of the order

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containing the declaration taking effect. This statutory timeframe can only be extended for up to one year. The purpose of new subsections (1A), (3) and (4) is to expedite the endorsement process by—

• removing the requirement for responsible public entities specified in a section 46AXA declaration to endorse draft Statements of Planning Policy; and

• imposing timeframes on those responsible public entities that do receive draft Statements of Planning Policy to decide whether to endorse the draft Statements and to notify the Minister of their decisions.

Clause 209 inserts new section 46AXA into the Planning and Environment Act 1987.

New section 46AXA(1) empowers the Minister to, by notice published in the Government Gazette, declare that a responsible public entity that is a committee of management or trustee under the Crown Land (Reserves) Act 1978 in relation to land in a declared area is not required to be given a copy of a draft Statement of Planning Policy under section 46AX.

Subsection (2) provides that the Minister can only make such a declaration if the Minister has considered the nature of the land managed by the committee of management or trustee and is satisfied that the draft Statement of Planning Policy would not impose significant obligations on the committee of management or trustee in relation to the land managed by the committee of management or trustee.

New section 46AXA is intended to address issues that have arisen with the endorsement of Statements of Planning Policy. It has proven difficult to obtain endorsement from small committees of management and trustees under the Crown Land (Reserves) Act 1978, which are often small committees of volunteers responsible for managing a single building or site within the declared area. It is intended that committees of management and trustees would not be required to endorse Statements of Planning Policy in circumstances where the Minister is satisfied that the Statement of Planning Policy would not impose significant obligations on those committees of management or trustees and has made a declaration under section 46AXA(1).

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Division 3—Transitional provisions

Clause 210 inserts section 228 into the Planning and Environment Act 1987 to provide transitional and savings provisions.

Subsections (1), (2) and (3) deal with the transitional arrangements for the green wedge amendments set out in Division 1 and reflect the intention that municipal councils that have prepared green wedge management plans prior to the commencement of these amendments are taken to have complied with the requirement set out in section 46AE.

Subsection (4) deals with the transitional arrangements for the distinctive area and landscapes amendments set out in Division 2 and reflects the intention that the amended legislation does not apply to the endorsement of draft statements of planning policy provided to responsible public entities before the amendments commence.

Part 11—Repeal of this Act

Clause 211 provides for the automatic repeal of this Act on 1 December 2024. The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).