Compliance and Enforcement Policy. November 2013

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1 Compliance and Enforcement Policy November 2013

2 Contents 1. Context VBA compliance and enforcement public value Purpose Outcome Authority Capability Building Plumbing Risk-based approach Priority matters Evaluation and integration Compliance and enforcement tools Building and plumbing enforcement tools No action Compliance advice and information Written warning Infringement notices Disciplinary action Plumbing only Rectification notice Plumbing notice/order Chain of responsibility Self-disclosure Relationship with other statutory agencies and government agencies Accountability Compliance and enforcement standards Appeal processes Legal advice

3 1. Context This Compliance and Enforcement Policy outlines how the Victorian Building Authority (VBA) delivers its regulatory role to maximise industry compliance. The policy is designed to establish a fair, consistent and appropriate approach by the VBA to compliance and responding to non-compliance. The Policy will ensure compliance and enforcement decision-making is aligned with the VBA s responsibilities and priorities. This document provides consistent, transparent information, primarily to VBA staff, but also to the industry and the public about the VBA s approach to compliance and enforcement. The VBA reserves the right to amend this document at any time. 2. VBA compliance and enforcement public value Purpose The purpose of the VBA s compliance activities is That building and plumbing works are completed in accordance with the requirements of relevant legislation, through the use of targeted, risk-based, and efficient compliance and enforcement activities. 2.2 Outcome The outcome by achieving this purpose is.. The Victorian community can have confidence that the construction of buildings and plumbing works, relevant to the areas regulated by the VBA, are completed safely and with integrity, which assists in sustainable economic growth for Victoria. 2.3 Authority The VBA s Regulatory Framework document provides a description of the legislative authority for VBA to undertake its functions and should be read in conjunction with this Policy. 2.4 Capability Under the Act, the VBA can authorise individuals to do compliance and enforcement activities on its behalf. People engaged in performing the following roles for the VBA are authorised to conduct compliance and enforcement activities on its behalf Building Performance auditor Anybody appointed by the VBA Board or the VBA s Chief Executive Officer under section 227A of the Act. Authorised person Anybody appointed by the VBA Board or the VBA s Chief Executive Officer under section 228(2) of the Act. 1 Moore, M 1995, Creating Public Value: Strategic Management in Government, Harvard University Press, Cambridge.

4 2.4.2 Plumbing Compliance auditor Anybody appointed by the VBA Board or the VBA s Chief Executive Officer under section 221ZZY of the Act. Plumbing inspector Anybody appointed by the VBA Board or the VBA s Chief Executive Officer under section 221ZZY of the Act. Each person authorised to conduct compliance and enforcement related activities on behalf of the VBA will have a card identifying them as an authorised person. 3. Risk-based approach In support of the purpose for compliance and enforcement within the VBA s operations, a risk-based approach has been adopted. This allows for the focus of the VBA s efforts and resources in areas where they are most needed and will have the most impact. It means individuals and businesses doing the right thing will not be burdened, but those not complying will be identified quickly. The VBA identifies risk priority areas through a review and analysis of its ongoing compliance activities (for example, inspections and audits), intelligence gatherings, engagement with industry, the community, other regulators and complaints made about those working within the building and plumbing industry. These priority areas are then integrated into objectives of the various compliance and auditing teams within the VBA. Complaints made to the VBA will be assessed in accordance to the risks and compliance prioritisation. 3.1 Priority matters The VBA places priority on: actions that place any person at risk of significant harm (physical /financial/reputational) matters of significant public concern matters demonstrating deliberate disregard for the law matters that are associated with a person or company with a history of compliance issues systemic or industry wide compliance issues requests for action from Commissioners or the VBA s Chief Executive Officer. 3.2 Evaluation and integration A key ingredient of successful regulation is meaningful, measurable performance indicators which focus on the impact of risk priorities and compliance approaches. To ensure they are relevant, the VBA annually reviews, updates and sharpens its compliance risk priorities and performance indicators. From this review a set of priorities and indicators are developed, which provides: clarity and direction to VBA staff about where efforts should be focused information to the industry about areas of focus in the coming year (however, industry must strive to meet all its regulatory obligations) confidence to the community, and assurance to the VBA Board, that the Authority is performing its regulatory functions in an intelligent and cost effective manner. 4

5 Focusing on specific risk priorities does not mean other breaches will not be addressed, when they are identified. However, risk priorities are designed to ensure the VBA s efforts are planned and managed to achieve outcomes. 4. Compliance and enforcement tools The VBA has a range of enforcement options available when non-compliance is identified or suspected. In deciding how to respond to breaches, the VBA will: consider the risk the breach poses to the community, industry or integrity of the regulatory framework ensure the conduct is stopped and consider the likelihood of its reoccurrence assess how to deter future breaches of the same kind or similar behaviour, ensuring clear messages to industry about what constitutes an acceptable standard of conduct consider the offender s record and, in particular, any previous history of non-compliance assess whether the enforcement tool used is appropriate and proportionate given the seriousness of the breach consider the context of the breach consider the costs involved in using a particular enforcement mechanism versus the severity of the breach and potential benefits associated with that mechanism consider the culpability of the parties involved. The options available to the VBA to address non-compliance escalate in severity, to match the seriousness of the alleged breach, for example, impact and culpability. Enforcement tools may be used independently or jointly to achieve appropriate results. 4.1 Building and plumbing enforcement tools The VBA has a range of options open to it to use in cases of non-compliance. Examples of responses to various levels of non-compliance are provided below. In all circumstances, VBA staff prepare comprehensive reports, record any warnings and provide justification for their decision, including any mitigating circumstances No action The VBA may exercise its discretion not to take any further action in an isolated and/or low risk incident (in terms of public health and safety) of non-compliance. This discretion maybe used where the breach involves a minor matter and the VBA is satisfied the non-compliance is more appropriately addressed without its intervention, for example, where the service provider volunteers to rectify the non-compliant works and the risk of repeated non-compliance is low Compliance advice and information In some cases involving low-risk non-compliance, the VBA may provide general advice, information or access to educational programs to the offender to support future compliance. This information includes the provision of guidance notes and general information which can be located on our website ( 5

6 4.1.3 Written warning These relate to breaches that are deemed to be low risk and/or mitigating factors, including the length of time the service provider has been involved in the industry, the number of incidents of non-compliance and the relevant facts of the case Infringement notices The VBA will issue infringement notices where the breach is a prescribed offence; these are generally used when it is not deemed to be of a level that requires a court appearance or disciplinary action Disciplinary action Under the Act, the VBA can only take disciplinary action against building or plumbing service providers licensed or registered in Victoria. In the case of building service providers, the VBA may refer the matter to BPB for inquiry. Alternatively, the VBA may conduct its own inquiry into a licensed or registered plumber s conduct Criminal prosecution The VBA seeks criminal prosecutions in the Magistrates Court when the conduct of a registered service provider is serious in nature and/or where the breach of the law was conscious and deliberate. The VBA also seeks criminal prosecutions against individuals who perform building or plumbing works without being licensed or registered in Victoria. 4.2 Plumbing only Along with the above enforcement tools, the VBA has other measures open to it for plumbing noncompliance Rectification notice The VBA may issue to a plumber (who carried out work or supervised work) with a written rectification notice to make the work comply with plumbing law. Rectification notices are used to resolve matters prior to taking other forms of enforcement action including infringement notices or disciplinary inquiries Plumbing notice/order The VBA may also issue a notice, and subsequently, an order to the owner or occupier of a property where a plumbing installation contravenes plumbing law. This is particularly used where there is a danger to safety or health, or a risk of property damage. Note: Emergency plumbing orders can also be issued if there is an immediate danger to life, safety or health of anyone or the work poses an immediate risk of significant damage to any property. 4.3 Chain of responsibility The chain of responsibility ensures that anyone who bears responsibility for conduct that affects compliance should be made accountable for failure to discharge that responsibility. For example, if a subcontractor commits a breach, the approved party may also be required to face review and possible enforcement action from the VBA. This applies to both the building and plumbing industries. 6

7 4.4 Self-disclosure Self-disclosure is not an enforcement tool. However, it provides an opportunity for building and plumbing service providers to notify the VBA of an issue with their practices and become more involved in developing a solution to breaches or situations. All parties who demonstrate a willingness to identify and address non-compliance prior to detection by the VBA will be given assistance to return to a compliant state. Self-disclosure will also be a determining factor in deciding which enforcement tools will be used. Matters of self-disclosure will be decided on a case-by-case basis. 5. Relationship with other statutory agencies and government agencies The VBA collaborates with other statutory authorities and government agencies to ensure behavioural change is achieved. To do this, the VBA understands the roles of other regulators and when legislative requirements allow, shares information and works collaboratively. The VBA encourages the use of memorandums of understanding with other regulatory agencies to formally share information and assists other regulators where appropriate, for example, by providing statements from experts within the VBA. 6. Accountability 6.1 Compliance and enforcement standards The VBA is committed to continuous improvement and as such aligns its compliance and enforcement activities to the following standards, guidelines and policies: Australian Government Investigation Standards Director of Public Prosecutions (Victoria) Prosecutorial Discretion Guidelines VBA Regulatory Framework. 6.2 Appeal processes The VBA supports controlled, consistent and transparent use of powers and the deployment of enforcement tools. Most enforcement tools the VBA uses include systemic rights of appeal or review, for example, via courts or required by legislation (Infringements Act 2006). If an affected party considers that the actions of the VBA or its employees are unjust and there is no mechanism to address this through a right of appeal or review, the VBA encourages the party, in the first instance, to write to: Chief Executive Officer Victorian Building Authority PO Box 536 Melbourne VIC 3001 Alternatively, a request for review can be lodged via the VBA website The request for review should include details about the nature of the enforcement action, the outcome, how the concerns are not addressed by existing systems and why the circumstances support a review. 7

8 However, contact may also be made with integrity bodies including the Independent Broad-based Anticorruption Commission or the Ombudsman Victoria. 7. Legal advice The information in this policy is not intended to constitute legal advice, but is for interested parties. Readers of this policy should seek their own legal advice if necessary. 8

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