LEGISLATIVE ASSEMBLY OF THE 
NORTHERN TERRITORY

MINISTER FOR LANDS AND PLANNING

BUILDING AMENDMENT 
(DISABILITY ACCESS AND OTHER MATTERS) BILL 2012
SERIAL NO. 202

EXPLANATORY STATEMENT

GENERAL OUTLINE

This Bill amends the Building Act. 
The purpose of this Bill is to amend the Building Act to provide for two different matters. The first matter relates to miscellaneous housekeeping matters. Since the commencement of the significant reforms to the Building Act in 2006, the Act has been tested and it has become apparent that a number of minor housekeeping amendments are required. 
Some of those housekeeping matters were included in the Building  Amendment (Registration and other matters) Bill 2011, introduced in the Legislative Assembly on 23 November 2011. That Bill relates to registration requirements for builders, and the residential building consumer package. 
The remainder of the matters proposed to be included in this Bill are: 
·	to allow the Practitioners Board to impose conditions on an applicant’s registration; 
·	to allow for an extension to a building contractor’s registration as a ‘one-off’ to spread out the common date for registration; and 
·	to provide appeal rights to the Building Appeals Board for applicants seeking accreditation for building products and construction methods from the Building Advisory Committee. 
The second matter is in response to the commencement of the Commonwealth Disability (Access to Premises – Buildings) Standards 2010. Those Standards are made under the Commonwealth Disability Discrimination Act 1992. The technical provisions in the Standards were replicated in the 2011 edition of the Building Code of Australia (the BCA). The BCA is the relevant technical standard for building work adopted in the Building Act (NT) through the Regulations. All proposed building work must comply with the BCA before a building permit may issue. 

This Bill proposes to replicate certain administrative matters contained in the Commonwealth Standards. One of those matters is to establish a process to consider applications for a modification of compliance with the access provisions in the BCA, on the grounds of unjustifiable hardship. 

It is proposed that the existing Building Appeals Board constituted under the Building Act will be the relevant body to consider these applications. In addition to unjustifiable hardship applications, the Board will also be able to issue a decision concerning proposed alternative solutions that relate to the access provisions in the BCA. 

It is proposed that the Regulations replicate the concessions contained in the Standards, which relate to lessees, and existing lifts and toilets. It is also proposed that the Regulations specify that the building and occupancy permit for building work subject to an access modification decision, or an alternative solution relating to a disability access provision, must contain details about those matters (including any decisions of the Building Appeals Board). 

The provisions concerning disability access decisions have been modelled on the Victorian Building Act 1993. That Act was amended in 2011 to provide for applications for a modification or departure from compliance with the disabled access provisions on the grounds of unjustifiable hardship in response to the commencement of the Commonwealth Standards.  

NOTES ON CLAUSES

Clause 1. Short Title

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

The Bill when passed will be cited as the Building Amendment (Disability Access and Other Matters) Act 2012. 

Clause 2. Commencement

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

Clause 3. Act amended

This clause specifies that this Bill amends the Building Act. 

Clause 4. Section 4 amended

Definitions have been included to reflect the amendments of this Bill. 

Clause 5. Section 16 amended

This clause inserts a provision requiring the Building Practitioners Board to include any conditions imposed on a practitioner’s registration in the register entry for that individual. The Board must also include any conditions imposed on a nominee for a corporation, on the entry for the corporation.  

Clause 6. Section 19 amended

This clause inserts a provision enabling the Building Appeals Board to hear an appeal of a decision by the Building Advisory Committee regarding the accreditation of a building product, construction method, design, component, or system. This clause also amends existing section 19(1)(b) to change the word ‘appeals’, to ‘applications’, as the terminology did not correctly reflect the matters considered under that subsection. 

Clause 7. Section 24D amended

Existing section 24D relates to the term of registration for building practitioners. This clause will amend the provision to enable a building contractor’s registration to be extended as a ‘one-off’ if they were registered between 1 July 2006 and 30 June 2007. Regulations are able to be made to cover the detail of how the provision will operate. For instance, it is intended that the Regulations provide that the new registration date will be the contractor or nominee’s date or birth that follows the current date for renewal, or, where there are two nominees, the new registration date will be the nominee’s date of birth that first occurs after the current date for renewal. 

Clause 8. Section 24FAB inserted 

This clause will insert a provision enabling the Building Practitioner’s Board to place conditions on the registration of any building practitioner, as the Board considers appropriate. The conditions must, however, be consistent with the Act, Regulations, or a Determination in force. 

This clause also inserts an offence with a maximum penalty of 40 penalty units where a building practitioner breaches a condition of their registration. 

This section is intended to enable the Building Practitioners Board to register people where they may meet most but not all of the requirements relating to experience for a particular category. This will enable the Board to register the applicant in a particular category, but limit the scope of work they may carry out, commensurate with their experience. 

Clause 9. Section 24FB amended

This clause inserts a provision that requires the Board to provide notice and reasons for a decision to impose conditions on a building practitioner’s registration. The result of including this provision and the operation of existing section 35(a), (b) and (c) is to enable a building practitioner that has had a condition imposed on their registration by the Board, to appeal that decision.

Clause 10. Section 53 replaced

This clause repeals and inserts existing section 53 of the Building Act. Replaced section 53 has been amended to enable the Regulations to detail the application process to the Building Advisory Committee for the accreditation of building products, construction methods, designs, components, or systems. The Regulations may also specify a period of time that the accreditation will remain in force, and circumstances where the Advisory Committee may revoke an accreditation. 

Before commencement of this Bill the regulation-making power for the issue of certificates of accreditation for building products, construction methods, designs, components, and systems accredited by a person or body is found in section 54(2). The schedule to this Bill omits that subsection as the regulation-making power is transferred to section 53. 

Clause 11. Section 59 amended

This section clarifies that a building certifier must not issue a building permit for building work to which an access modification decision under proposed section 129G(2)(b) relates, if the work may not comply with the modifications recommended in the decision. 

Existing section 59(1) and (2) provide that a building certifier must not issue a building permit unless the building work and the building permit will comply with the Act and Regulations, and the building permit does not impose lesser standards than those prescribed by Regulation, unless permitted by or under the Act. 

A building certifier will be able to issue a building permit where there is less than full compliance with the disabled access provisions of the BCA, where there has been a decision by the Building Appeals Board in proposed Part 10A that the applicant would suffer unjustifiable hardship to comply. If the Building Appeals Board makes a decision that the applicant will not suffer unjustifiable hardship, existing section 59(1) and (2) will apply, and the building certifier could not issue the building permit. 

Clause 12. Part 10A inserted

Division 1 Preliminary matters

Proposed Part 10A will insert provisions that enable the Building Appeals Board to consider applications for unjustifiable hardship, and alternative solution proposals concerning the disabled access provisions in the BCA. 

Section 129A inserts definitions that relate to the disabled access applications and decisions. 

129B is a general description of disability access provisions, which is a term referred to throughout proposed Part 10A. This section describes a disability access provision as a provision of a Code or document that is adopted by Regulation and prescribed by Regulation for this Part. That document is a reference to the BCA, which is adopted through the Regulations and it is intended that Regulations will be made to refer to the parts of the Code that relate to disabled access. 

Subsection (2) makes it clear that the disabled access provisions are only those provisions that impose requirements or standards relating to providing persons with disabilities access to buildings, (known as performance requirements), and ways in which those requirements or standards may be achieved (known as deemed to satisfy provisions). In addition, they will only be considered disability access provisions for this Part where there is an equivalent performance requirement and deemed to satisfy provision in the Disability (Access to Premises – Buildings) Standards 2010 (Cth). 

129C describes the sections of Part 11 that will apply to applications made regarding unjustifiable hardship and alternative solutions under this Part. As these decisions will be different to the appeals and determinations considered under Part 11, only those sections that relate to the general procedures of the Building Appeals Board will apply to a disability access decision. The key difference between a disability access decision and the determinations and appeals currently considered by the  Building Appeals Board is that a disability access decision may be overridden by a decision in a Federal Court. 

Division 2 Alternative solution decisions and access modification decisions

129D enables an owner, an owner’s agent, or a certifier, to apply to the Building Appeals Board for an alternative solution decision. Subsection (2) provides that the application must be in the approved form, and accompanied by the fee that will be specified in the Regulations. 

129E describes an alternative solution decision. The decision by the Building Appeals Board will be whether a proposed alternative solution complies with the performance requirements of the disability access provisions in the BCA, or whether it does not comply. 

Subsection (3) provides that an alternative solution will comply if the design of the building is at least equivalent with the level specified in the deemed to satisfy provisions. 

129F enables an owner, a lessee, or an agent of the owner to apply to the Building Appeals Board for an access modification decision. Subsection (2) provides that the only ground that an application may be made is whether compliance with the disability access provisions would impose unjustifiable hardship on the applicant. 

Section 129F(1)(c) makes it clear that the building certifier for the proposed building work may not act as the owner or lessee’s agent. This is consistent with the approach in the Victorian Building Act 1993. 

Subsection (3) provides that the application must be in the approved form, and accompanied by the fee that will be specified in the Regulations. 

129G describes an access modification decision. The decision by the Building Appeals Board will be whether a particular disability access provision will apply without modifications because the applicant would not suffer unjustifiable hardship, or the provision applies with modifications recommended by the Board so as to avoid unjustifiable hardship, or the provision does not apply because it would impose unjustifiable hardship on the applicant. 

Subsections (3) and (4) mirror provisions in the Standards. Subsection (3) provides that an access modification decision must provide for compliance with the disability access provisions to the maximum extent not involving unjustifiable hardship. Subsection (4) provides that unjustifiable hardship must be interpreted and applied having due regard to the rights and interests of all relevant parties. 

129H sets out the circumstances that must be taken into account by the Building Appeals Board to determine whether the applicant would suffer unjustifiable hardship. The matters set out in this section have been reproduced from the Standards. 

This means that the Building Appeals Board will consider the same list of factors that the Federal Court will consider when determining whether there has been unlawful discrimination on the basis that a person has failed to comply with the Standards. This will help to ensure consistent decision making between the Building Appeals Board at the Territory level and the Federal Court at the Commonwealth level and will enable a consideration of unjustifiable hardship before building work commences. It is noted that considerations of unjustifiable hardship in the Federal Court may be made after building work has been completed. 

The factors that must be considered are:

(a) any additional capital, operating or other costs, or loss of revenue, that would be directly incurred by, or reasonably likely to result from, compliance with the disability access provision;

(b) any reductions in capital, operating or other costs, or increases in revenue, that would be directly achieved by, or reasonably likely to result from, compliance with the disability access provision;

(c) the extent to which the construction of the building has been, or will be, financed by government funding;

(d) the extent to which the building:
(i) is used for public purposes; and
(ii) has a community function;

(e) the financial position of the applicant;

(f) any effect that compliance with the disability access provision is reasonably likely to have on the financial viability of the applicant;

(g) any exceptional technical factors (such as the effect of load-bearing elements on the structural integrity of the building), or geographic factors (such as gradient or topography), affecting a person's ability to comply with the disability access provision;

(h) financial, staffing, technical, information and other resources reasonably available to the applicant, including any grants, tax concessions, subsidies or other external assistance provided or available;

(i) whether the cost of alterations to make any premises accessible is disproportionate to the value of the building, taking into consideration the improved value that would result from the alterations;

(j) benefits reasonably likely to accrue from compliance with the disability access provision (including benefits to persons with disabilities, building users and other affected persons) or detriment likely to result from non-compliance;

(k) if compliance with the provision is required – detriment reasonably likely to be suffered (including in relation to means of access, comfort and convenience) by any of the following:

(i) the applicant or building developer;
(ii) a building manager;
(iii) persons with disabilities and other people using the building;

(l) if detriment under paragraph (k) involves loss of heritage significance, the extent to which the heritage features of the building are essential, or merely incidental, to the heritage significance of the building;

(m) any evidence about efforts made in good faith by the applicant or a person required to comply with the disability access provision (including the relevant building certifier and any consulting access consultants);

(n) if the applicant has given an action plan to the Australian Human Right Commission under section 64 of the Disability Discrimination Act 1992 (Cth) – the terms of the action plan and any evidence of its implementation;

(o) the nature and results of any processes of consultation, including at local, regional, State, national, international, industry and other levels, involving, or on behalf of, the applicant, a building developer, a building manager, the relevant building certifier or persons with disabilities, about means of achieving compliance with the disability access provision, including in relation to the factors listed in this subsection.

Subsection (3) requires the Building Appeals Board to consider how substantially equal access to premises may be achieved if a substantial issue of unjustifiable hardship is raised. This subsection also requires the Board to consider any measures that have been or will be undertaken to ensure substantially equal access. 

Subsection (4) inserts the definition of building developers and building managers, as they are terms referred to in 129H. They are definitions that have been modelled on the definition set out in the Standards, as building managers and developers are entities that may be subject to the Standards at the Federal level. 

Division 3 General matters

129J provides for the notice and registration of disability access decisions by the Building Appeals Board. Subsection (1) requires the Building Appeals Board to provide the applicant with a notice of the decision, and if the applicant is a certifier – the person who has engaged the certifier, or the certifier (if the applicant is a person other than the certifier) notice of the decision and reasons. 

Subsections (2), (3), (4), and (5) provide for the procedural matters of signing, filing, and inspection of those decisions. Subsection (5) provides that a person may apply in writing to the Chairperson of the Appeals Board for approval to inspect an access modification decision and the reasons for the decision. Approval by the Chairperson is required as the decisions and reasons may contain sensitive confidential information that may relate to an applicant’s financial affairs. Subsection (4) provides that alternative solution decisions may be inspected upon request and payment of the fee specified in the Regulations and therefore do not require approval from the Chairperson. 

129K describes the effect of disability access decisions. This section and the note that accompanies the section makes it clear that a decision by the Building Appeals Board cannot override the requirements of Commonwealth legislation, for instance, the Standards. Consequently, a person may still be subject to a claim in a Federal Court under the Disability Discrimination Act 1992 (Cth) in relation to an alleged contravention of a disability access provision, after building work has been completed. 

Clause 13. Part 11 heading replaced

The heading to Part 11 is replaced by this clause to better reflect the matters contained in the provisions within this Part. 

Clause 14. Part 11, Division 1 heading replaced

The heading to Division 1, Part 11 is replaced by this clause to better reflect the matters contained in the provisions within this Division. 

Clause 15. Section 130 amended

Section 130 has been amended to refer to proposed section 19(1)(ac), which relates to appeals to the Building Appeals Board from decisions by the Building Advisory Committee. The section has also been reworded slightly to move the exclusion for reporting authorities in existing subsection (1), to proposed subsection (3). 

Clause 16. Act further amended

This is a formal clause that provides for further amendments to the Building Act in the Schedule to this Bill. The schedule contains five items. 

The first item relates to section 35(b). This amendment should have been included in an earlier bill making amendments to the Act because section 24C has been repealed. This is a minor drafting matter, and having the provision amended in this Bill does not affect the operation of any provisions in the Act.   

Item two inserts words into the heading of section 54 as a matter of drafting.

Item three omits (1), as that provision will no longer consist of two subsections as item five omits subsection (2). This is because the regulation-making power in existing section 54(2) is moved to replaced section 53 by clause 10 of this Bill.

Item four relates to section 54, which has been reworded to tie in with the wording in replaced section 53.

Item five omits subsection (2) as the regulation-making power in existing section 54(2) is moved to replaced section 53 by clause 10 of this Bill.