Statute Law (Miscellaneous Provisions) Bill

The Hon. E. M. OBEID (Minister for Mineral Resources, and Minister for Fisheries) [7.30 p.m.]: I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The Statute Law (Miscellaneous Provisions) Bill continues the well-established statute law revision program that is recognised by all members as a cost-effective and efficient method of dealing with amendments of the kind included in the bill. The form of this bill is similar to that of previous bills in the statute law revision program. Schedule 1 to the bill contains policy changes of a minor and non-controversial nature that the Minister responsible for the legislation to be amended considers to be too inconsequential to warrant the introduction of a separate amending bill. Schedule 1 contains amendments to 51 Acts. I shall mention some of those amendments to give honourable members an indication of the types of amendments that are included in the schedule.

The amendments to the Constitution Act 1902 will provide for the Deputy Speaker of the Legislative Assembly, rather than the Chairman of Committees, to act in the place of the Speaker when he or she is absent from New South Wales. The amendments to the Anti-Discrimination Act 1977 and the Privacy and Personal Information Protection Act 1998 will provide for the President of the Anti-Discrimination Board and the Privacy Commissioner to be appointed on either a full-time basis or a part-time basis. The amendments also abrogate the doctrine of incompatible offices to the extent that it would preclude the holder of the office of president of the Anti-Discrimination Board or of Privacy Commissioner from also holding judicial or statutory office.

The bill amends the City of Sydney Act 1988 so as to empower the Electoral Commissioner, rather than the general manager of the City of Sydney, to exercise technical functions related to enrolment for elections for the City of Sydney. Last year the Electoral Commissioner was made responsible for the preparation of electoral rolls. The bill makes a number of minor amendments to public sector superannuation legislation. The amendments to the First State Superannuation Act 1992 will ensure that the salary nominated by an executive officer at the time of making an election to become a member of the scheme under that Act is not less than the monetary remuneration payable to the officer at the time of the nomination.

The amendments to the Superannuation Act 1916 will provide for a minimum benefit when a scheme member dies before retirement and his or her surviving spouse also dies without having commuted a reversionary pension so as to achieve consistency between the treatment of contributors and pensioners who die without having commuted their pension. Other amendments in schedule 1 include amendments to the Landlord and Tenant (Rental Bonds) Act 1977 and the Property, Stock and Business Agents Act 1941 to provide for

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the costs and expenses of administering the Residential Tribunal Act 1998 and the Residential Parks Act 1998 to be payable out of the statutory interest account or rental bond interest account established under the Acts, restoring the funding scheme that existed before the enactment of the 1998 Acts.

The Subordinate Legislation Act 1989 is amended so as to postpone the repeal of the Recreation Vehicles (General) Regulation 1985 until 1 October 1999. The regulation is due for repeal on 1 September 1999. The bill contains a number of amendments to the Protection of the Environment Operations Act 1997. The amendments will empower an appropriate regulatory authority to require information to support an application for surrender of a licence, in the same way as it is currently authorised to require further information from an applicant for the issue, transfer or variation of a licence, and will achieve uniformity in various provisions regarding the date from which certain decisions of a regulatory authority operate and the date that the issue or variation of a prevention notice takes effect.

Under the proposed amendments a clean-up notice or prevention notice that is issued in good faith and in respect of which a dispute arises will be able to be confirmed by the authority that is in fact the appropriate regulatory authority. The amendments provide that action already taken before such a confirmation is valid and that any future action with respect to the notice is to be taken by the authority that is ultimately determined to be the appropriate regulatory authority. The last schedule 1 amendments that I will mention are the amendments to the Police Offences Act 1901. The amendments repeal part 3 of the Act, which contains a number of offences that are outdated or that are now dealt with in other legislation. For example, section 70 provides that a person is liable to pay a maximum penalty of $4 if in any street or public place the person beats or dusts any carpet or flies any kite.

Schedule 2 deals with matters of pure statute law revision consisting of minor technical changes to legislation that the Parliamentary Counsel considers are appropriate for inclusion in the bill. Examples of amendments in schedule 2 are those omitting unnecessary material and those updating references to statutory bodies and statutory office holders. Schedule 3 updates references to Acts. Schedule 4 updates references to courts of petty sessions, which were abolished and replaced by local courts, and to police magistrates and stipendiary magistrates, the functions of which are exercised by magistrates. Schedule 5 contains amendments to technical features of legislation to facilitate the implementation of a new computer mark-up language to improve on-line access to legislation on the legislation database prepared and maintained by the Parliamentary Counsel’s office. This database forms the basis of the public’s electronic access to the legislation of the State.

Schedule 6 amends the Justices Act 1902 for the purpose of removing the gender-specific language used before the policy of using gender-neutral language in legislation was implemented. This is one of the few remaining significant Acts that were not covered by the program included in previous statute law revision bills. Schedule 7 contains repeals of amending Acts that are at least 10 years old and contain no substantive provisions and of more recent Acts that contain only amendments incorporated in reprints or amendments to repealed Acts. The schedule also repeals the Juvenile Migrants Act 1926, which is of no practical utility. Schedule 8 contains provisions dealing with the effect of amendments on amending Acts, savings clauses for the repealed Acts and a power to make regulations for transitional matters if necessary.

The various amendments are explained in detail in explanatory notes set out beneath the amendments to each of the Acts concerned. Rather than repeat the information contained in those notes, I invite honourable members to examine the various amendments and accompanying explanatory material and, if any concern or need for clarification arises, to approach me regarding the matter. If necessary I will arrange for government officers to provide additional information on the matters raised. If any particular matter of concern cannot be resolved and is likely to delay the passage of the bill, the Government is prepared to consider withdrawing the matter from the bill. I commend the bill to the House.

The Hon. J. H. JOBLING [7.32 p.m.]: The Opposition has carefully considered the Statute Law (Miscellaneous Provisions) Bill. It is the standard omnibus bill that is presented to Parliament usually twice a year to clean up a lot of small changes, some regarding Acts, amendments or understandings. A quick perusal of the bill indicates that there are 51 such items listed. This is a mechanism whereby the Government can advance minor changes without having to go through a deal of hardship in presenting a plethora of bills. The Opposition is concerned about schedule 1.24, which deals with the Meat Industry Amendment Act 1998 No 129 and provides:

[3] Schedule 1 [87]

Omit "12 members" from section 45 (2) of the Meat Industry Act 1978 (as proposed to be inserted by Schedule 1 [87]).

Insert instead "13 members".

[4] Schedule 1 [87]

Inserted after section 45 (2) (i) of the Meat Industry Act 1978 (as proposed to be inserted by Schedule 1 [87]):

, and

(j) one, who is a member of a trade union, is to be a representative of consumers of abattoir meat and processed meat.

The Government indicated to me that in the Committee stage it would agree with the Opposition’s amendment that would delete lines 6 to 16 from schedule 1, page 28, and lines 8 and 9 from page 29. I thank the Government for ensuring that that will happen. I will check with the Clerk whether that should be page 28, lines 8 and 9. The Clerk has pointed out that in the second part of the amendment there is an explanatory paragraph under schedule 1 on page 29 that is consequential on the first amendment that the Opposition will move. I thank the Government for indicating its support of the Opposition’s amendments. The Opposition supports the bill.

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The Hon. J. F. RYAN [7.36 p.m.]: I thank the Government for the courtesy extended to me in regard to my contribution to the Statute Law (Miscellaneous Provisions) Bill, which may have sounded a little like a reference to the Home Building Amendment Bill. The Home Building Amendment Bill was a step forward in regulating the building industry and I understand the Opposition supported it. Perhaps a more far-reaching reform is required and I ask the Minister, who is anxious to prove his mettle, to review the existing legislation relating to the regulation of home builders to make sure that it is doing its job.

As an illustration, I refer to the activities of a builder named Rocco Vitalone, who trades in the Macarthur and southern Sydney area as Vital Homes. This man has a builder’s licence, operates alone, employs no regular tradespeople and has no regular staff. In early January I delivered numerous letters - a wad of mail nearly an inch thick containing letters of complaint relating to 20 homes - to the Minister for Fair Trading.

There are seven matters relating to the behaviour of this builder in the Commercial Claims Tribunal operated by the Department Fair Trading. The complaints range from failure to lodge proper documents with relevant local councils to adding unnecessary concrete piers and slabs to new houses which are frequently not required by engineers and sometimes have not been properly drawn on council plans. Despite that, this builder charges for the additional piering at twice the going rate. He has cost his customers thousands of extra dollars.

Endless complaints have been made that he does not construct houses according to building plans submitted to councils or according to contract specifications. He has constructed houses with odd door openings. I saw one bathroom which had had its door opening reconstructed to fit a wardrobe door. There have been instances of wrong-sized windows, the use of weatherboard in place of bricks and the use of second-hand building materials. I saw a rusty laundry tub installed and, in a more serious instance, I saw a housing frame, which had been manufactured for a different style of house, left out in the rain and then recut and recycled into another housing job. It had been so badly recut that it did not fit properly on the slab.

There have been numerous complaints about the fixed price for his jobs. I have been informed about many customers who have started with a low price and have ended up paying thousands of dollars more for the house than they intended to. In one instance he painted the walls in a house the wrong colour. He then agreed to paint the walls in the colour the customer required, but he charged the customer extra for repainting and at a rate as though it was a variation to the contract. All builders charge a loading for variations to contracts, but Mr Vitalone charges for variations to the contract at a rate 30 per cent above the normal price. That is an extraordinary charge.

I visited one home in the Narellan area which was originally quoted at a price of $69,900. The finished home ended up costing the home owner $102,000 - $33,000 over the contract price. In this case Mr Vitalone submitted the home plans to Camden council and failed to obtain approval. At that point the customer wanted to cancel the contract and go elsewhere but Mr Vitalone threatened the home owner - who spoke English as a second language and who was not particularly familiar with the law - with legal action, saying he was breaching the contract.

This was a flagrant misstatement. Most home building contracts are invalidated if they fail to gain approval of council. Mr Vitalone told the home owner that if he did not go ahead with the house he would sue him for $15,000 compensation for breach of contract. This was a totally fallacious claim. The customer buckled under that threat and wound up paying $33,000 more for the home than he originally intended.

I have been informed of lengthy delays by Mr Vitalone in completing houses. I have seen and been made aware of projects that Mr Vitalone started on the understanding they would be completed in 16 weeks, which is standard for a project home, but which have taken in excess of two years to complete. I have seen some building sites where little more than the slab has been laid in nine or 10 months. These delays have cost owners thousands of dollars in extra expense and interest and, in many instances, they have had to seek alternative accommodation. If they were building the house as an investment property, they have lost the rental income they would have gained had the home been constructed in the proper time.

It particularly concerns me that Mr Vitalone has been able to master the art of delaying and stalling the existing complaint mechanism which is designed to deal with builders like him. He basically stalls the complaint process using a wide variety of tricks. As a result, some customers walk away from the complaint exhausted from the process - either because they can wait no longer or they spend so much money in the process they can no longer afford to go on with their complaints. Even to lodge
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a standard complaint most customers need to spend about $1,000 to get engineering advice or to hire a building consultant. It is then normal for them to wait up to six weeks just to get a preliminary hearing in the relevant tribunal.

Sometimes it takes two or three months before they get to the first hearing where evidence is actually presented. Sometimes there is another hearing and sometimes a visit to the site, and between each hearing there are weeks of delay. Finally, the referee makes a decision. It is not unusual for the housing complaint process to take six to eight months. When someone complains to the Building Tribunal that it took nine months to build a house, it can be particularly galling to have another six to eight months added to that.

I have just found out about one couple that took Vital Homes to the tribunal and, because their case was particularly urgent, the Department of Fair Trading organised for their complaint to be expedited. In any event, even the expedited claim took eight weeks from the time of the original complaint until evidence was presented. To illustrate Mr Vitalone’s gall, in the tribunal, after he had been confronted with evidence that it was nine months before he did anything more than excavate the property and that he had carried out the excavation without council approval or permission from the owners, he made a cross-claim of $30,000 against the customers. He said that if they were prepared to pay him $30,000 he would walk away from the job, and he expected that money as compensation for the profit he had lost by not completing the home.

On another occasion Mr Vitalone allowed a case to drag on through the tribunal. Again, the issue was the length of time it had taken him to construct the house. Much of what he had constructed had to be demolished. As the referee was about to make a ruling Mr Vitalone rushed into the tribunal and announced that he was making a claim in the Local Court against the home owners for $150,000 for loss of profit and damages, thus robbing the customers of a settlement in the tribunal and causing more delay and, without a doubt, causing the home owners to incur more costs. He was obviously hoping that these people would give up, because not everyone has the resources to go on and on in this process.

The processes we have in place to catch builders such as Mr Vitalone of Vital Homes need to be tightened up to ensure he cannot continue to do this. I have also met unpaid contractors. I met a concreter who is owed $25,000 and a gyprocker who is owed $1,700, and I understand Mr Vitalone owes a kitchen company in the Liverpool area more than $2,000. It is not just individual home owners who have been making complaints about Mr Vitalone.

I contacted a number of councils in the areas where he builds houses. I was amazed to learn that public authorities such as councils knew so much about his misdeeds and were quite able to commit in writing a great deal of detail about what a rotten builder Mr Vitalone was. Despite that, he is still able to take customers and continue to cause the havoc that he has caused to so many people. I received a letter from Wollondilly Shire Council dated 5 February, which stated:

As a general comment, it appears from Council’s records that the following matters are common issues for all applications submitted and processed by this Council.

•Erosion and sediment control protection measures are not installed and/or maintained.

•Piers, and in some cases concrete slabs, are filled with concrete before inspected and/or approved by Council’s building surveyors.

•Engineer’s certificates are not supplied until much later in the project, generally at final inspection phase.

•Termite protection certified by the builder and not by accredited termite protection installer . . .

•Smoke detectors not installed in dwellings at time of final inspection.

•Roof and wall frame loading points often inadequate or inappropriately located.

The council says a builder in its area regularly builds houses on which the roof and wall frame loading points are often inadequate or inappropriately located, yet the builder continues to accept customers and cause havoc. Building consultant K A Goddard Pty Ltd looked at a building constructed by Mr Vitalone and provided this report:

As can be seen in the report there have been many errors throughout the construction of this very small and simple to build residence. The majority of mistakes occur from elementary mistakes in the setting out of the residence followed by extremely bad workmanship. Any person that calls himself a licensed Builder should be able to set out this very simple residence without any mistakes and control his subcontractors to provide a finished [sic] to the residence acceptable to all parties. Mr Vitalone does [not] fall into this category.

Mr Vitalone has caused -

and he names the persons involved -

. . . who only required a very simple residence erected on their property, a terrific amount of stress, trauma and cost due to his

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inability to be able to read a plan and transfer the information into erecting the residence.

In my opinion Mr Vitalone is not a fit person to hold a Builders Licence and I would have no hesitation in recommending to the Department of Fair Trading that his Licence be revoked immediately and stamped with "Never to be renewed" and that "Mr Vitalone is not a fit person to ever a hold a Builders Licence."

That appears to be the case, but it would appear that a file an inch thick full of complaints from me to the Minister about this man, and endless actions before the building tribunal - where, apparently, his reputation is well known - have still not resulted in the removal of this builder’s licence. Most honourable members would agree that there is enough evidence hanging around this man to warrant something being done. I urge the Minister to do something about it. I accept that the Home Building Amendment Bill was a first step and I welcome it, but more things might need to be done if other builders operate as Mr Vitalone does.

The Hon. E. M. OBEID (Minister for Mineral Resources, and Minister for Fisheries) [7.50 p.m.], in reply: The Government remains committed to providing consumer representation on the Meat Industry Authority board. However, because of time limits placed on it at this stage it will address the issue at a later date. Permission of the consumer representative under the current Act was an oversight and I reiterate that the Government will correct that omission at the next opportunity. It is appropriate at this time to include union representation on the board while the rationalisation of abattoirs continues.

Motion agreed to.

Bill read a second time.

Clauses 1 to 6 agreed to.

Schedule 1

The Hon. J. H. JOBLING [7.53 p.m.], by leave: I move Opposition amendments Nos 1 and 2 in globo:

No. 1 Page 28, schedule 1.24, lines 6-16. Omit all words on those lines.

No. 2 Page 29, schedule 1.24, lines 8 and 9. Omit all words on those lines.

I thank the Minister for his support for the amendments. These amendments are a sensible move and relate to the Meat Industry Authority Amendment Act. The people in the meat industry are particularly pleased to know the Government accepts the amendments. I commend the amendments.

Amendments agreed to.

Schedule 1 as amended agreed to.

Schedules 2 to 8 agreed to.

Title agreed to.

Bill reported from Committee with amendments and passed through remaining stages.