From 1 September 2016, the VBA introduced a show cause process to replace the existing Building Practitioner Board (BPB) disciplinary process. The new process allows the VBA to take disciplinary action against a registered building practitioner (a practitioner) where it “reasonably believes” that one or more of the grounds set out under section 179 (1) of the Building Act 1993 (Vic) (the Act) have been breached.
The Victorian Building Authority (VBA) oversees the conduct of a practitioner, ensuring compliance with the Act and other associated legislation.
Step 1 – Receiving a Show Cause Notice
The VBA will commence disciplinary action by first issuing a Show Cause Notice on a practitioner.
A Show Cause Notice should be taken seriously as the consequences can be severe, ranging from fines to suspension or cancellation of a practitioner’s registration.
Section 179(1) of the Act lists 15 grounds the VBA can take disciplinary action against a practitioner. Some noteworthy grounds for consideration include, but are not limited to:
- Unprofessional conduct or failure to comply with a code of conduct;
- No longer a fit and proper person to practice as a building practitioner;
- A practitioner that has failed to comply with an order or direction given to the practitioner;
- A practitioner that has failed to pay an adjudicated amount under the Building and Construction Industry Security of Payment Act 2002;
- A practitioner that has failed to comply with an undertaking given to the VBA under the Act;
- A practitioner that has contravened the Domestic Building Contracts Act 1995, the Building Regulations 2006 or the Act.
Step 2 – Behind the scenes of a Show Cause Notice
Prior to the issuing of a Show Cause Notice, the VBA will investigate to determine whether there is sufficient evidence for a “reasonable belief” that a practitioner’s conduct constitutes grounds for disciplinary action under one or more of the listed grounds under section 179(1) of the Act.
The term “reasonable belief” is not a defined term in the Act. It requires the decision maker to objectively evaluate all known considerations to form a “reasonable belief” required to take action against a practitioner. The takeaway is that although a “reasonable belief” may be undefined, the standard of a “reasonable belief” carries a higher threshold than that of a mere belief or assertion and must be supported by sufficient evidence to form the basis of that “reasonable belief”.
The VBA may commence investigations upon receiving a complaint from a member of the public, including a consumer or another authority (which includes a local authority), in relation to the conduct of the practitioner and/or work undertaken by them.
During this investigation stage, the VBA will often write to the practitioner to respond to specific allegations of misconduct. The practitioner should respond in writing or agree to undertake an interview with the VBA. It is vital that the practitioner take care when responding to allegations from the VBA. Any statements the practitioner makes will impact on the investigation and whether it escalates to a Show Cause Notice.
Step 3 – What’s included in a Show Cause Notice?
If the VBA concludes after its investigation into the alleged misconduct of the practitioner that it has sufficient evidence to form the “reasonable belief” that a ground(s) for taking disciplinary action against a practitioner exist – a Show Cause Notice will be issued.
Under section 182 of the Act, the Show Cause Notice must state the following:
- The VBA proposes to take disciplinary action;
- The disciplinary action proposed to be taken;
- The registration in relation to which the proposed action is to be taken;
- The grounds for the proposed action;
- The facts and circumstances forming the basis for the ground for the proposed action;
- An invitation to the registered building practitioner to show within a stated period (the Show Cause Period) why the proposed action should NOT be taken.
Step 4 – How to respond after receiving a Show Cause Notice?
A practitioner can make written or oral submissions to the VBA in response to the Show Cause Notice within the show cause period.
The show cause period is 28 days after Show Cause Notice is given to the practitioner. This timeframe can be extended by the VBA at the request of the practitioner.
Step 5 – Decision time
After the show cause period ends, the VBA must decide whether a ground exists to take disciplinary action against the practitioner.
If the practitioner disputes the decision of the VBA after the show cause process, the practitioner may appeal the decision through the VBA’s internal review process. The practitioner may also apply to VCAT (without opting for internal review) for review of a decision to immediately suspend, suspend or cancel a registration under section 186 of the Act.
How MCLP can help you!
Throughout the entire show cause process, legal representation is allowed. MCLP can assist you with the drafting of any written submission and/or giving of oral submissions.
The main takeaway from all this is that a Show Cause Notice must be treated seriously. A practitioner who receives a notice is well advised to seek legal advice.
Our experienced team of construction lawyers can help you navigate this stressful process to achieve the best outcome for you.
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This article is not legal advice and should not be relied upon as legal advice. All articles found on this website are intended to provide informative information, nevertheless, in many instances legislation and case law has been simplified and/or paraphrased. If you would like personal legal advice based on your current circumstances, you should contact MurdockCheng Legal Practice for a free consultation.