Subordinate legislation tabled on 19 November 2013

Report No. 42 Transport, Housing and Local Government Committee March 2014

Transport, Housing and Local Government Committee

Chair Mr Howard Hobbs MP, Member for Warrego

Deputy Chair Mrs Desley Scott MP, Member for Woodridge

Members Mr John Grant MP, Member for Springwood

Mr Darren Grimwade MP, Member for Morayfield

Mr Carl Judge MP, Member for Yeerongpilly

Mr Anthony Shorten MP, Member for Algester

Mr Jason Woodforth MP, Member for Nudgee

Staff Ms Kate McGuckin, Research Director

Ms Danielle Cooper, Principal Research Officer

Ms Rachelle Stacey, Principal Research Officer

Ms Lisa Van Der Kley, Executive Assistant

Ms Debbie Mohi, Executive Assistant

Contact details Transport, Housing and Local Government Committee

Parliament House

George Street

Brisbane Qld 4000

Telephone +61 7 3406 7486

Fax +61 7 3406 7070

Email thlgc@parliament.qld.gov.au

Web www.parliament.qld.gov.au/thlgc

Acknowledgements

The Committee wishes to acknowledge the assistance provided by the Technical Scrutiny of Legislation secretariat during the course of the Committee’s inquiry.

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Introduction

Role of the Committee

The Transport, Housing and Local Government Committee (the Committee) is a portfolio committee established by the Legislative Assembly of Queensland (the Legislative Assembly) on 18 May 2012. The Committee’s primary areas of responsibility are transport, main roads, housing, public works, local government and community recovery and resilience.1

Pursuant to section 93(1) of the Parliament of Queensland Act 2001, the Committee is responsible for examining each item of subordinate legislation within its portfolio areas and considering:

the policy to be given effect by the legislation

the application of fundamental legislative principles

the lawfulness of the subordinate legislation

the content of the explanatory notes to ensure they comply with part 4, section 24 of the Legislative Standards Act 1992.

Section 93(2)(b) of the Parliament of Queensland Act 2001 confers responsibility on portfolio committees to monitor the operation of part 8 of the Statutory Instruments Act 1992. The Committee monitors all forms approved or made under an Act or subordinate legislation relevant to the Committee, and reports to the Legislative Assembly on the operation of Part 8.

Aim of this report

This report advises on subordinate legislation examined and, where applicable, presents any concerns that the Committee has identified in respect of subordinate legislation tabled on 19 November 2013 that are within its portfolio responsibilities. Unless expressly noted below, no issues were identified.

Subordinate Legislation

The Committee examined the following subordinate legislation:

Proclamation made under the Building and Other Legislation Amendment Act 2013 (SL No. 216) (tabled on 19 November 2013)

Building and Other Legislation Amendment Regulation (No. 2) 2013 (SL No. 217) (tabled on 19 November 2013)

Queensland Building Services Authority and Other Legislation Amendment Regulation (No. 1) 2013 (SL No. 224) (tabled on 19 November 2013)

Upon its initial review of this subordinate legislation, the Committee noted one potential issue concerning fundamental legislative principles in relation to the Building and Other Legislation Amendment Regulation (No. 2) 2013 (SL No.217). In particular, the Committee noted:

The installation, repair, maintenance or alteration of a solar collector on the roof of a building is self-assessable but will still be required to meet relevant building regulations and standards

The Explanatory Notes state that “the responsibility for ensuring the work complies with relevant provisions and standards rests with the owner concerned”.2

The Committee expressed concern that owners, who will likely have limited knowledge or experience of the relevant regulations and standards, would be required to ensure compliance of the work. It is

1 Schedule 6 – Portfolio Committees, Standing Rules and Orders of the Legislative Assembly as amended on 14 February

2013. 2 Building and Other Legislation Amendment Regulation (No. 2) 2013, Explanatory Notes for SL. 218, page 3.

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the Committee’s view that owners will presumably contract out the work to a qualified technician, specifically in order to ensure all relevant regulations and standards are complied with.

The Committee wrote to the Hon Tim Mander MP, the Minister for Housing and Public Works, on 25 February 2014, to highlight its initial concerns regarding potential breaches of fundamental legislative principles. The Committee requested that the Minister report back with further information in relation to this potential issue.

The Minister responded to the Committee on this issue in a letter dated 14 March 2014 advising that:

The Building Regulation 2006 provides that the building owner as well as any contractor who performs the work are ultimately responsible for ensuring that the work complies with all relevant codes and standards; this regulation amendment does not change that situation.

Further, the installation of solar collectors can only be undertaken by licensed professionals and compliance with the applicable codes and standards forms part of the licensing regime. Therefore, it would be very unlikely that the owner, as opposed to the contractor, would be prosecuted for an offence if it were to transpire that, through no fault of the owner, the work was non-compliant with relevant codes.

A copy of the Committee’s letter to the Minister is attached as Appendix A.

A copy of the Minister’s letter to the Committee is attached as Appendix B.

Upon review of the Minister’s letter, the Committee is satisfied that in relation to the subordinate legislation examined in this report, there are no significant issues regarding consistency with fundamental legislative principles or the lawfulness of the subordinate legislation.

Summary of subordinate legislation examined

SL No. 216 Tabling Date: 19 November 2013 Disallowance Date: 3 April 2014

Title and Objective

Proclamation made under the Building and Other Legislation Amendment Act 2013

The objective of the Proclamation is to fix a commencement date of 1 November 2013 for provisions relating to applications to build over or near a sewer, water main, storm water drain or a combined sanitary drain.

SL No. 217 Tabling Date: 19 November 2013 Disallowance Date: 3 April 2014

Title and Objective

Building and Other Legislation Amendment Regulation (No.2) 2013

The objectives of the amendment regulation are to:

1. provide that the installation of a solar collector on the roof of a building is self-assessable building work and that a building development approval is not required for such work; and

2. implement a streamlined legislative scheme for assessing building development applications for building work to be undertaken over or near sewers, water mains, storm water drains or combined sanitary drains (relevant infrastructure), that will:

i. reduce the regulatory burden, costs and delays associated with obtaining approvals for such work; and

ii. introduce greater consistency, fairness and transparency in relation to the assessment of applications.

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SL No. 224 Tabling Date: 19 November 2013 Disallowance Date: 3 April 2014

Title and Objective

Queensland Building Services Authority and Other Legislation Amendment Regulation (No.1) 2013

The objectives of the amendment regulation are to:

support the operation of the Queensland Building and Construction Commission Act 1991 (QBCC Act);

make consequential amendments to the regulations following commencement of the QBCC Act;

clarify the existing exclusion from the definition of ‘building work’ in the Queensland Building Services Authority Act 1991 (QBSA Act) for the construction, maintenance and repair of roads;

exclude the laying of wet pour rubber from the definition of ‘building work’ in the QBSA Act on the basis that it was not intended that this type of work would fall within the scope of ‘building work’; and

amend section 5 of the QBSA Regulation to exclude the installation of internal window shutters (excluding fire shutters) from being regulated under the Act.

Recommendation

Recommendation 1

The Committee recommends that the Legislative Assembly note:

the subordinate legislation tabled on 19 November 2013

that the Committee did not identify any significant issues regarding consistency with fundamental legislative principles or the lawfulness of the subordinate legislation.

Mr Howard Hobbs MP Chair

Parliament House Ph: 61 7 3406 7486 George Street Fax: 61 7 3406 7070 Brisbane Qld 4000 email: thlgc@parliament.qld.gov.au www.parliament.qld.gov.au/THLGC Our Ref: 140225_02_SL

25 February 2014 Hon Tim Mander MP Minister for Housing and Public Works GPO Box 2457 Brisbane QLD 4001 Email: housingandpublicworks@ministerial.qld.gov.au Dear Minister

Building and Other Legislation Amendment Regulation (No. 2) 2013 (SL No.217)

The Transport, Housing and Local Government Committee requests your advice on the Building and Other Legislation Amendment Regulation (No. 2) 2013 (SL No.217) which was tabled in Parliament on 19 November 2013.

Pursuant to section 93(1) of the Parliament of Queensland Act 2001, the Committee is responsible for examining each item of subordinate legislation within its portfolio areas and considering the policy to be given effect by the legislation; the application of fundamental legislative principles; the lawfulness of the subordinate legislation; and the content of the explanatory notes to ensure they comply with part 4, section 24 of the Legislative Standards Act 1992.

The Committee notes that the Building and Other Legislation Amendment Regulation (No. 2) 2013 (SL No.217) provides that the installation, repair, maintenance or alteration of a solar collector on the roof of a building is self-assessable but will still be required to meet relevant building regulations and standards.1 The Explanatory Notes state that “the responsibility for ensuring the work complies with relevant provisions and standards rests with the owner concerned”.2

Section 4(2) of the Legislative Standards Act 1992, provides that legislation must have sufficient regard to the rights and liberties of individuals. Accordingly, legislation should not ordinarily make a person responsible for actions or omissions over which the person may have no control.3

The Committee notes that self-assessable building work is limited to work of a minor nature. However, the Committee is concerned that owners, not the contractor completing the work, will be required to ensure the work complies with relevant provisions and standards.

1 Building and Other Legislation Amendment Regulation (No. 2) 2013, Explanatory Notes for SL. 218, page 2.

2 Building and Other Legislation Amendment Regulation (No. 2) 2013, Explanatory Notes for SL. 218, page 3.

3 Office of the Queensland Parliamentary Counsel, Fundamental Legislative Principles: The OQPC Notebook, page

117.

Transpor t , Hous ing and Loca l Government Commi t tee

It is the Committee’s view that owners will presumably contract out the work to a qualified technician, specifically in order to ensure all relevant regulations and standards are complied with. It follows then that owners will not be in a position to ensure the work complies with relevant provisions and standards, as the Explanatory Notes assert (at page 3).

Therefore, the Committee seeks an explanation as to how an owner may discharge their responsibilities in relation to proving work relating to solar collectors complies with the relevant provisions and standards.

The Committee would be grateful for your advice by Wednesday 12 March 2014.

Please contact the Committee’s Research Director, Ms Kate McGuckin, on 3406 7486 or Kate.McGuckin@parliament.qld.gov.au with any further questions you may have. Yours sincerely

Mr Howard Hobbs MP Chair ENC

cc Mr Neil Castles, Director-General, Department of Housing and Public Works

demohi

Text Box

Appendix B

Parliament House Ph: 61 7 3406 7486 George Street Fax: 61 7 3406 7070 Brisbane Qld 4000 email: thlgc@parliament.qld.gov.au www.parliament.qld.gov.au/THLGC Our Ref: 140225_02_SL

25 February 2014 Hon Tim Mander MP Minister for Housing and Public Works GPO Box 2457 Brisbane QLD 4001 Email: housingandpublicworks@ministerial.qld.gov.au Dear Minister

Building and Other Legislation Amendment Regulation (No. 2) 2013 (SL No.217)

The Transport, Housing and Local Government Committee requests your advice on the Building and Other Legislation Amendment Regulation (No. 2) 2013 (SL No.217) which was tabled in Parliament on 19 November 2013.

Pursuant to section 93(1) of the Parliament of Queensland Act 2001, the Committee is responsible for examining each item of subordinate legislation within its portfolio areas and considering the policy to be given effect by the legislation; the application of fundamental legislative principles; the lawfulness of the subordinate legislation; and the content of the explanatory notes to ensure they comply with part 4, section 24 of the Legislative Standards Act 1992.

The Committee notes that the Building and Other Legislation Amendment Regulation (No. 2) 2013 (SL No.217) provides that the installation, repair, maintenance or alteration of a solar collector on the roof of a building is self-assessable but will still be required to meet relevant building regulations and standards.1 The Explanatory Notes state that “the responsibility for ensuring the work complies with relevant provisions and standards rests with the owner concerned”.2

Section 4(2) of the Legislative Standards Act 1992, provides that legislation must have sufficient regard to the rights and liberties of individuals. Accordingly, legislation should not ordinarily make a person responsible for actions or omissions over which the person may have no control.3

The Committee notes that self-assessable building work is limited to work of a minor nature. However, the Committee is concerned that owners, not the contractor completing the work, will be required to ensure the work complies with relevant provisions and standards.

1 Building and Other Legislation Amendment Regulation (No. 2) 2013, Explanatory Notes for SL. 218, page 2.

2 Building and Other Legislation Amendment Regulation (No. 2) 2013, Explanatory Notes for SL. 218, page 3.

3 Office of the Queensland Parliamentary Counsel, Fundamental Legislative Principles: The OQPC Notebook, page

117.

Transpor t , Hous ing and Loca l Government Commi t tee

It is the Committee’s view that owners will presumably contract out the work to a qualified technician, specifically in order to ensure all relevant regulations and standards are complied with. It follows then that owners will not be in a position to ensure the work complies with relevant provisions and standards, as the Explanatory Notes assert (at page 3).

Therefore, the Committee seeks an explanation as to how an owner may discharge their responsibilities in relation to proving work relating to solar collectors complies with the relevant provisions and standards.

The Committee would be grateful for your advice by Wednesday 12 March 2014.

Please contact the Committee’s Research Director, Ms Kate McGuckin, on 3406 7486 or Kate.McGuckin@parliament.qld.gov.au with any further questions you may have. Yours sincerely

Mr Howard Hobbs MP Chair ENC

cc Mr Neil Castles, Director-General, Department of Housing and Public Works