02 March 2011
Mr MORRIS (Mornington) — I am pleased to speak in support of the Building Amendment Bill 2011. It is a bill with a twofold purpose.
The first is an amendment to the definitions to recognise the National Construction Code Series and to include the Building Code of Australia and the Plumbing Code of Australia within the National Construction Code Series. That is part of the National Partnership Agreement to Deliver a Seamless National Economy
I have previously expressed some reservations about part of the Rudd‑Council of Australian Governments agenda and its push towards ‘harmonisation’. I personally often consider that to be a euphemism for dumbing everything down, making it one size fits all and extinguishing the essential characteristics of our states that make the federation work as effectively as it does.
I should make it clear that I do not see and never have seen the seamless economy process as part of that. I think it is an essential part of the evolution that we need to undertake as a nation toward an economy that works across the country.
The second purpose of the bill is to allow an application to the Building Appeals Board for an exemption for modifications or variations to the building regulations in respect of access to buildings or access to services and facilities within buildings for those who have a disability.
The mechanics of achieving those objectives are relatively simple. The bill is a slim volume, as members can see. Definitional changes occur in clause 3 , with a new National Construction Code Series definition; a redefinition of the Building Code of Australia, and the addition in clause 6 of the definition for the Plumbing Code of Australia.
The meat of the bill is essentially around the modification of the building regulations to deal with the disability issue, and the substance of those is contained in clauses 4and 5 of the bill. Clause 4 deletes the existing opportunity to appeal against the regulations on an issue related to disability, and clause 5 inserts the entire new regime, which is intended to deal with that process. In practical terms it is a pretty simple bill.
The issue, however, has been around for some time, and there is a need for much greater certainty. While there have been some provisions in the Building Code of Australia which have sought to set standards for disability access, unfortunately those standards have not been the same as those that are applied by the commonwealth Disability Discrimination Act 1992.
What this means in practical terms is that if someone constructs a building in accordance with the standards in the Building Code of Australia — and of course they must meet these standards if they are to get a building permit in the first place — and they do not meet the requirements of the Disability Discrimination Act, then a complaint can be made to the Federal Court that there are issues under the DDA and the complainant can have those issues dealt with. Of course this becomes a very expensive process if that is to be the case.
This legislation is intended to deal with that process. It has been the subject of a decade‑long consultation process conducted by the commonwealth, which has consulted broadly with the community, I am advised. The disability sector has been consulted, and the commonwealth has developed a series of standards which are the outcome of that process. These standards are now to be included in the national construction code series — the replacement of the Building Code of Australia — with effect from 1 May.
I turn to some of detail of the legislation. Under the national premises standards a concept is developed of unjustifiable hardship, being unjustifiable hardship in terms of the obligations of the building owner. What determines whether an exemption should be granted to the standards is whether unjustifiable hardship applies. It would normally apply to a situation involving the renovation of an existing building — perhaps a heritage building — or a building where structural limitations require enormously expensive modification. That is the sort of circumstance where unjustifiable hardship provisions would come into play.
The difficulty is that under the federal Disability Discrimination Act 1992 unjustifiable hardship can only be determined by the Federal Court, so the standards have been developed in an effort to deal with those issues, and the commonwealth government has requested that the state consider adopting the exceptions and exemptions from the national premises standards as the basis on which to work and to make further recommendations as to how the process should progress.
As I said, the unjustifiable hardship provisions essentially deal with structural and heritage provisions, where it would be impractical or disproportionately costly to make these sorts of changes. The Building Appeals Board becomes involved in order to ensure that the determinations are consistent with the act.
The BAB has been involved for a number of years, dealing with these issues under the existing section 160 of the Building Act 1993. The extension to the new section 160 will simply confirm the board’s role and deal with the issue in a satisfactory manner. The benefit with this proposal is that it provides that applications can be dealt with prior to a building being constructed, and as a result no subsequent modifications are necessary for that to work.
I would like to touch on one issue that is raised in the Scrutiny of Acts and Regulations Committee report. In Alert Digest No. 1, which was tabled in this chamber yesterday, the committee expressed its concern that the definition of new section 160B(7) may provide less protection to people with a disabillity than the definition in the commonwealth Disability Discrimination Act 1992. In its report the committee indicates that it will be writing to the minister seeking further information.
For the information of members engaged in this debate I can confirm that the difficulty is one of jurisdiction. In other words the Building Appeals Board cannot deal with issues that should be dealt with by the Federal Court. Clearly the board would be well outside its jurisdictional area.
The application of the national standards and of these variations will allow the Building Appeals Board to deal with these cases as they come through rather than having each of them go off to the Federal Court. Clearly we do not want a situation where the Federal Court is required to determine on building permits. That would be simply ridiculous. There is no difficulty, the same standards apply. It is simply a jurisdictional issue.
With those few words I commend the bill to the house and wish it a speedy passage.
Legislative Assembly 2 March 2011
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