The VBA’s Internal Review Process and what it means for Building Practitioners
Article by Emily Martins, Senior Associate with Lovegrove Smith & Cotton
From 1 September 2016 the Building Practitioners Board was abolished and its powers and functions have now been absolved by the Victorian Building Authority (VBA).
The VBA now presides over all the disciplinary functions regarding practitioner misconduct and the supervision and monitoring of registered building practitioners (practitioners) and their compliance with all relevant acts of Parliament and building regulations.
A number of changes have also now come into effect, namely as follows:
- There is an allowance for the VBA to immediately suspend a practitioner’s license;
- There are changes to the process by which disciplinary action and other types of action can be taken against a practitioner by the VBA, inclusive of show cause notices and enforceable undertakings;
- There are changes to the review processes that a practitioner can take when a VBA decision is made against a practitioner, including ‘Internal Review’ processes within the VBA.
This article will discuss in greater detail the ‘Internal Review’ process for practitioners.
The Internal Review Process
Step One- Who and what can be reviewed?
The ‘Internal Review’ process will only be available to affected persons on reviewable decisions. An affected person is a practitioner or another who is directly affected by the decision that has been made by the VBA.
Reviewable VBA decisions include:
- Directions under section 205M of the Building Act 1993;
- Immediate suspensions of a practitioner’s license registration;
- Conditions imposed on a practitioner’s licenses;
- Refusal of a practitioner’s registration;
- Disciplinary action against practitioners.
Step Two- How Do I Apply for Internal Review?
After an affected person receives a reviewable decision from the VBA, the affected person is at liberty to apply for an ‘Internal Review’ of the decision with the VBA without having to apply straight to VCAT, unless the decision has been made by the Chief Commissioner or Chief Executive Officer of the VBA.
To apply for an ‘Internal Review’ of a decision, the affected person is to complete and submit an Application for Internal Review Form with the VBA within 28 days after the day the affected person has been given notice of the decision.
If the decision of the VBA has been made by the Chief Commissioner or Chief Executive Office of the VBA an ‘Internal Review’ of the decision cannot be made and the matter can only be reviewed upon application to the Victorian Civil and Administrative Tribunal (VCAT).
Step Three: What is the Internal Review Process?
Unless the reviewable decision of the VBA was ‘immediate suspension’, the decision is put on hold once the ‘Internal Review’ process has begun.
Upon receipt of the Application for Internal Review, the VBA will assess whether all the key criteria has been satisfied, including that the time frames for review have been complied with, that the applicant is an affected person, the decision is a reviewable one and that the decision for review was not made by the Chief Commissioner or Chief Executive Office of the VBA.
Applications that have complied with the above will be referred for ‘Internal Review’ to a senior member of the VBA that has had no previous involvement in the previous decision making process and is not of a less senior position than the original decision maker.
The ‘Reviewer’ will take into account when reviewing the decision all relevant material that was before the VBA at the time of the original decision and that has since become available for consideration.
Applicants are at liberty to submit further written or oral evidence in support of their application for ‘Internal Review’.
The Reviewer will have 28 days to give a decision, however this timeframe may be extended by the VBA on the merits of a case and on account of the factual matrix and circumstances at hand.
A decision of the Reviewer can be to:
- Affirm the original decision of the VBA;
- Amend the original decision of the VBA;
- Substitute the original decision of the VBA for the reviewable decision.
If the affected person is not satisfied with the decision of the Reviewer in the ‘Internal Review’, the affected person can make an application to the VCAT for a review of the Internal Review’ decision.
An affected person can engage a legal representative to accompany them with giving any oral evidence should they chose to give evidence to the VBA in this manner. Alternatively, an affected person can elect to engage legal representation to assist them in drafting their written submissions to the VBA, as there is nothing in the Building Act 1993 to preclude parties from seeking legal counsel.
Affected parties are encouraged to seek legal advice from a building and construction lawyer well versed in the area to assist them with the ‘Internal Review’ processes, particularly in circumstances where there been an Order for immediate suspension of a practitioner’s registration or where oral or written submissions are to be given to the VBA.