Identity cards for authorised persons under the Building Act
Published by Ian Pridgeon, Marcus Heath, Daniel Silfo, Elizabeth Flanagan, Angelina Bell of RK Lawyers
Sections 228 and 228A of the Building Act 1993 (Building Act) operate to allow a municipal building surveyor (MBS) to authorise a person to exercise any or all of the powers of the MBS under Division 2 of Part 13 of the Building Act. Where a person has been so authorised by the MBS, the MBS must issue identification to that person.
The authorisation and identification requirements in the Building Act are separate from the requirements of a Council appointing a person to be an authorised officer under section 224 of the Local Government Act 1989 (LGA).
In most, if not all cases, it would be appropriate that a person appointed by the MBS to be an authorised person under the Building Act also be appointed as an authorised officer of Council under the LGA.
The instrument of appointment and authorisation by the MBS of an authorised person needs to be a separate instrument to the instrument appointing the person to be an authorised officer of Council as the authorisation is derived from a different legal entity.
The identification requirements in the Building Act and the LGA are also separate, such that an authorised person under the Building Act would require a separate form of identification to the identity card that must be issued to an authorised officer under the LGA.
The form of identification of an authorised person under the Building Act under section 228B(4) must:
(a) display a photograph of the person; and
(b) state the person’s name; and
(c) state the fact that the person is an authorised person within the meaning of section 228.
The Building Act does not prescribe the exact form that the identification must take, rather provided the requirements in section 228B(4) have been met, it will be a valid identification.
For practical purposes, the MBS may issue the identification in the form of a sufficiently durable card. Whilst it is not stipulated as a requirement in section 228B(4), we are of the view that the identification card should state that it has been issued by the MBS and accordingly consider it should also be signed by the MBS.
Both the Building Act and the LGA contain requirements in relation to the production of identification when exercising powers and entering land.
We understand that separate guidance material in relation to the requirements for the exercise of powers by the MBS and an authorised person, including the requirements for entry onto land will be provided by the Victorian Municipal Building Surveyors Group (VMBSG) in due course.
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