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Introduction and Analysis of Act

Table of Contents

Introduction.

Reasons for the introduction of the Act

Shergold/Weir Report

Duty of care: Mandate to restore the confidence of consumers.

Obligations of building practitioners under the Act

Obligation to abide by Building Code of Australia.

Consequences of building practitioners for non-compliance of the Legislation.

Power of Secretary under the Act to impose the penalty and take actions against the practitioner

Conclusion.

Bibliography.

Acts/ Legislation.

Cases.

Journal/ websites.

Introduction to Design and Building Practitioners Act

The introduction of Design and Building Practitioners Act 1920 (NSW) (Act) has been a significant step toward the restoration of the confidence of the public in the construction industry of the nation (Jones, et al., 2020). the new legislation has the potential to perform the landscape of the construction and can be considered to be e vital move towards consumer protection in the particular industry. The act has included three significant keys in order to to ensure better functioning of the construction industry. Every participant of the industry has been obligated with the duty of care while they carry out the construction work for the redressal of safety issues in the industry. Also, there are provisions for the registration of specialist work and professional engineering services under the Act. The legislation has also provided for the compliances and certificate requirements that have to be met by the builders, design practitioners and engineers now to ensure the smooth functioning and building of confidence among the consumer. The present paper will provide an overview of the act stating the obvious reasons for introducing this act. The various obligations of the building practitioners have been provided under this act will also be scrutinized. An overview of all the consequences of building practitioners with respect to non-compliance of the legislation will also be addressed in the paper for a better understanding of this Act.

Reasons for the Introduction of The Act

Shergold/Weir Report

The report provided various key issues that have shortcomings of the implementation of the National Construction Code and associated with the enforcement and compliance system for construction and building standards (Hardwicke, 2018). One of the key issues provided with the report is regarding the previous compliance failures like fire safety, structural issues, water ingress. even the inefficiency and inadequacy associated with the documentation has affected the building quality and the maintenance process badly has been highlighted with the report. The shortcomings associated with the commercial building industry and the independence of the building certifiers were other issues that has been highlighted and demanded an immediate response in the construction industry. The report further provided various recommendations which can improve the landscape of the construction industry in Australia. Search recommendation was regarding the registration of the various participants of the construction industry like building practitioners who have been actively e involved in the different process of the building including the design, maintenance and construction of the buildings. The requirement for registration was also highlighted for the building practitioners as it will ensure the closing of the gap between the jurisdictional requirements. The provided Act is an immediate response of the New South Wales government over the Shergold/ Weir report which provided a description of the various inadequacy is in the implementation of the national construction code which has been an issue of concern at the national level over the defect of buildings and combustible cladding (Public Accountability Committee, 2019).

Duty of Care: Mandate to Restore the Confidence of Consumers

Another significant reason that has provided a background for the enactment and implementation of this particular act is the lack of duty of care which consequently leads to insecurity with respect to consumer protection. As provided in the case of Brookfield Multiplex Ltd v SP6, the court held that the builder did not go a duty of care towards the Owners Corporation suggest the serious issue for the protection of the consumer in the construction industry (Brookfield Multiplex Ltd v SP6, 2014).

This particular issue has been addressed by the Act with the Part 4 which provides for a statutory duty of care for the participants of the construction work in each and every process including the design work, manufacturer or supplier of the building products, supervisory or other such roles. The act has provided for the entitlement of damages in the case of breach of this duty which has been established by the common law. Provided duty is applicable for both the future and the current owners of the land. The duty of care in this Act has the retrospective effect which even provides assurance and confidence to the customers (Schedule 1, Clause 5 of the Act). This provision of the Act ensures the act of taking reasonable care by the participants of the construction industry which will ultimately lead to the avoidance of any economic loss by the landowner.

Obligations of Building Practitioners Under the Act

  • One of the obligations of building practitioner provided under this act is with respect to the submission of all the relevant documents which are related to the building work to the Secretary within 90 days once the occupation certificate has been issued for the building work (Section 15(1) of Act).
  • The other obligation that has been on a registered building practitioner is with respect to providing a building compliance declaration, contractor document and other required documents to a person for whom the practitioner is doing the building work before making an application for an occupation certificate (Section 17(1) of the Act).
  • With respect to the filing of an application for getting occupation certificate for the building work which is related to this legislation has to be carried out, the Act has provisions for giving written notice to every registered building practitioner who has done any building work with the intention to apply for that certificate (Section 16(1) of Act). Once the application has been made, the person has to provide notice in written form to every registered building practitioner who had done the building work with respect to the making of this application (Section 16(2) of Act).
  • As provided under Section 18 of this Act, the building practitioner as to ensure that to every regulated design with respect to the building work has been prepared by registered design practitioner and design compliance declaration has been obtained for the same.
  • The Act has clearly provided for not indulging with any building work in which the regulated design does not comply with the requirements of Building Code of Australia (BCA) (Section 19 (1)(b) of Act).
  • If there are any variations in the building work after the commencement of the building work, the recording of such variation has been prescribed and must be followed by the building practitioner. The Act has provided various guidelines which must be adhered when there is any variation in the building work from the given regulated design (Section 20(1) of Act).
  • It is also compulsory for the building practitioner to take all the reasonable steps in order to ensure that the building work has been carried out with the regulated design which has been in accordance with the design compliance declaration issued from unregistered design practitioner under this Act (Section 21 of Act).

Obligation to Abide by Building Code of Australia

There are more obligations related to the Building Code of Australia that must be fulfilled by the building practitioner under this Act (Section 22 of Act).

  • Taking all reasonable steps in order to ensure that any part of the building work must be complying with all the mandates of the Building Code of Australia which is applicable for that part of building work is one of the obligations to be fulfilled by the building practitioners.
  • The building practitioner must give notice in writing if there are requirements to be met to fulfil the compliances of Building Code of Australia and the same has been outlined by the registered building practitioner. The written notice must have all the steps provided to the principal certifier who is accountable for the issuance of the occupation certificate for that building work.

Consequences of Building Practitioners for Non-Compliance of The Legislation

Power of Secretary Under the Act to Impose the Penalty and Take Actions Against the Practitioner

The legislation had provided exclusively thought to the security in case of the non-compliance of any of the provisions of the Act by the building practitioner. The security can issue show cause notice to any of the registered practitioner if it has been found not complying the provision (Section 99). The practitioner can be cautioned or given a warning by the Secretary (section 98(4)(e)) or even there can be suspension or cancellation of the registration of the practitioner (Section 98 (4)(g)) considering the gravity of the non-compliance act of the practitioner. The Secretary also has the power to disqualify a particular practitioner on a temporary or permanent basis from registration (Section 66(f)). A penalty of up to $220,000 (body corporate) or $110,000 (in any other case) can be imposed on the building practitioner by the Secretary.

The Act has also provided a provision of investigating power vested in the Secretary. The Secretary can appoint different officers to monitor, investigate and enforce the compliance with respect to the requirements of the Act (Section 73 (b)). the appointed officers have provided broad powers which include giving notice to the practitioner to provide information or records (Section 77(1)); directing a person to be present at a specific place and time in order to answer the questions of the officers (section 78(2)) and to enter the premises of the construction during the business hours (Section 78(1)).

The Act provides power to the Secretary to issue a particular order called to stop work order if there is an opinion developed by the Secretary that the work of the construction industry has the probability to contravene any of the provisions of the Act resulting into major harm or loss to the public or potential occupiers or occupiers of the building where the work is carried out (section 89(1)). The legislation has provided a maximum penalty of up to $220,000 for the corporate body and $110,000 for an individual (S 66(1) (c) of Act) when there is a breach of the stop work order issued by the Secretary. A penalty of up $33,000 has been imposed per day for the continuing continue offence by the body corporate. on the other hand, the maximum penalty for continuing offence by an individual is up to $11,000 each day.

The Act has provided a penalty for any registered practitioner who contravenes the provision of registration or any condition related to suspension or the cancellation of registration of the building practitioner (Section 56 of Act). If the building practitioner who has been registered under this act provides or hire or let use the certificate of registration to any third person, maximum penalty of 600 units is provided for a body corporate and similarly a penalty of 300 units is provided for any other case (Section 57(1) of Act). In such a situation, the Secretary is obliged to cancel the registration of that particular registered building practitioner who has control when this particular provision of the section (Section 57 (2) of Act).

Conclusion on Design and Building Practitioners Act

The introduction of this legislation has addressed many issues and problems outlined in the Shergold/Weir Report. Before the enactment of this piece of legislation, there were widespread disappointment and dissatisfaction among the consumers particularly in respect of safety and the care required in this type of work. The Design and Building Practitioners Act 2020 has provided in length the various obligations of the building practitioners and the impacts of non-compliance of the provisions of this Act. Penalty has been imposed for contravening the provisions of this particular Act which suggest the strict adherence with the provisions of Act. The role and power vested in the Secretary ensure the proper implementation of the Act without failing to meet all the criteria outlined in this Act as well as the Building Code of Australia (BCA). The basic idea outlined in the Act is to ensure the enhancement of confidence of the consumers in the construction industry with respect to safety and duty of care owed by these building practitioners. The inclusion of penalties for not adhering with the provisions assures the impact of the Act to be positive for the consumers and build a better image of the construction industry in Australia.

Bibliography for Design and Building Practitioners Act

Acts/ Legislation

Building Code of Australia

Design and Building Practitioners Act 2020 (NSW) s 15.

Design and Building Practitioners Act 2020 (NSW) s 16.

Design and Building Practitioners Act 2020 (NSW) s 17.

Design and Building Practitioners Act 2020 (NSW) s 19.

Design and Building Practitioners Act 2020 (NSW) s 20.

Design and Building Practitioners Act 2020 (NSW) s 21.

Design and Building Practitioners Act 2020 (NSW) s 22.

Design and Building Practitioners Act 2020 (NSW) s 57.

Design and Building Practitioners Act 2020 (NSW) s 66.

Design and Building Practitioners Act 2020 (NSW) s 75(b).

Design and Building Practitioners Act 2020 (NSW) s 77(1).

Design and Building Practitioners Act 2020 (NSW) s 78.

Design and Building Practitioners Act 2020 (NSW) s 89(1).

Design and Building Practitioners Act 2020 (NSW) s 98.

Design and Building Practitioners Act 2020 (NSW) s 99.

Cases

Brookfield Multiplex Ltd v SP6 (2014) 1288 HCA 36.

Journal/ websites

Hardwicke, L., 2018. SUMMARY OF THE SHERGOLD/WEIR REPORT AND THE IMPACT OF THE, s.l.: Australian Institute of Architects.

Jones, C., Holt , P. & Weakley , R., 2020. Australia: The Design and Building Practitioners Act 2020 (NSW) comes into effect – but is it designed right?. [Online]
Available at: https://www.mondaq.com/australia/construction-planning/962172/the-design-and-building-practitioners-act-2020-nsw-comes-into-effect-but-is-it-designed-right
[Accessed 23 September 2020].

Public Accountability Committee, 2019. Regulation of building standards building quality and building, s.l.: LEGISLATIVE COUNCIL.

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