Industry

Building Infringement Notice and Enforcement Process

In this section:

Click here to view the MFB Enforcement and Prosecution Management Policy​.

Click here to view the Attorney-General's Guidelines to the Infringements Act 2006

General

One of the principal functions of the Chief Officer of Metropolitan Fire and Emergency Services Board (MFB) under the Building Act 1993 and Building Interim Regulations 2017 is to enforce fire safety maintenance requirements within existing building as well as specific fire safety standards within certain existing residential buildings.

​The department tasked by the Chief Officer to carry out this function is the Building Inspections and Compliance department (BIC) of the Structural Fire Safety Department.

The BIC Section regularly inspects buildings and places of public entertainment to identify fire safety risks and deficiencies as well as regulatory breaches so that building owners and occupiers can take the appropriate action to reduce the consequences of fire exposure to their buildings as well as satisfying their statutory obligations.

When building owners or occupiers fail to meet their statutory obligations, the Chief Officer is authorised under section 255 of the Building Act 1993 to issue building infringement notices (BINs) for prescribed offences.

In addition to the issuing of BINs the Infringements Act provides for the issuing of other notices such as official warnings, withdrawal of official warnings, penalty reminder notices and notices advising of the withdrawal of BINs.

In those instances where building owners and occupiers fail to meet their statutory obligations, the Metropolitan Fire and Emergency Services Board (MFB), has been authorised by the Building Commission to commence legal proceedings for prescribed offences.

What is a Building Infringement Notice?

A Building Infringement Notice (BIN) is a notice that may be served by the Chief Officer under section 255 of the Building Act 1993 (Building Act) on the owner or the occupier of a building or land who has committed a 'prescribed offence'. A 'prescribed offence' is any one of certain offences in the Building Interim Regulations 2017 (Building Regulations).

Whilst the Building Act and Regulations provides for who can issue BINs, what offences a BIN can be issued for and what penalties apply, the form of a BIN, the methods for service and other processes which can be followed before, during and after issuing BINs is determined by reference to the Infringements Act 2006 (Infringements Act).

In addition to the issuing of BINs the Infringements Act provides for the issuing of other notices such as official warnings, withdrawal of official warnings, penalty reminder notices and notices advising of the withdrawal of BINs.

What is the purpose of a Building Infringement Notice?

A BIN services two main purposes:

  • To penalise a person for committing a 'prescribed offence' without bringing proceedings in a court (that is, without commencing a prosecution); and
  • Where appropriate, to require a person to take additional steps to 'expiate' (make amends for) the offence concerned. 

It is this latter feature that distinguishes BINs from prosecutions and makes BINS a useful tool for achieving compliance with the Building Regulations. 

Note: In the context of the Building Act and the Building Regulations, the term 'person' means 'a body politic or corporate as well as an individual' (Interpretation of Legislation Act 1984, section 38).

What is an Official Warning?

An official warning is an alternative to an infringement notice. An official warning may be issued, at the discretion of the Chief Officer under section 8(1) of the Infringements Act after due consideration of the MFB’s Enforcement Policy has been made, and if:

  • The Chief Officer reasonably believes the person in question has committed an infringement  offence (see Part 7.1); and
  • The Chief Officer thinks an official warning (rather than an infringement notice) is appropriate in the circumstances.

Official warnings carry no penalty, but do not prevent the issuing officer from later on taking proceedings against, or serving an infringement notice on, the person who has been warned.

If the Chief Officer chooses to take proceedings or serve a BIN, he or she must first withdraw the official warning by way of a written notice.

That withdrawal notice may be served any time within the 6 months of the service of the official warning. Therefore, failure to withdraw an official warning within 6 months may prevent the Chief Officer from being able to issue a BIN or from commencing a prosecution.

What is a prosecution?

A prosecution is a legal proceeding that is brought by one person (the 'informant') against another person who is alleged to have committed an offence (the 'defendant').

Although offences against the Building Act and Regulations are known as 'regulatory' or 'quasi-criminal' offences, the procedure for prosecuting a person who commits such an offence is the same as it is for offences such as assault or theft. Similarly, a conviction for an offence against the Building Act or Building Regulations may form part of a person's criminal record or criminal history, just as a conviction for assault or theft would.

The Building Act and the Building Regulations contain numerous offence provisions. An offence provision is usually recognisable by the penalty provision at the end of the relevant section or regulation. For example, regulation 1009(2) provides that:

An owner of a building or place of public entertainment must ensure that a copy of any current occupancy permit is available at that building or place for inspection by the municipal building surveyor or chief officer at any time on request.

​Penalty: 10 penalty units.

Alternatively, the penalty provision may be separate from the provision that describes the conduct constituting the offence. For example, regulation 708 provides that (as relevant):

(2) A residential type fire sprinkler system complying with AS 2118.4—1995 must be installed in each building to which this regulation applies.

(3) If the sprinkler system referred to in sub-regulation (2) has more than 100 heads or the building to which this regulation applies accommodates more than 32 residents, the sprinkler system must be connected to a fire station or other approved monitoring service in accordance with Practice Note 2006-07 issued by the Building Commission in May 2006.

(5) A person who fails to comply with this regulation is guilty of an offence and liable to a penalty not exceeding 10 penalty units.

In regulation 708, the penalty provision in sub-regulation (5) applies to each of the offences described in sub-regulations (2) and (3).

What is the relationship between Building Infringement Notices and prosecutions?

Strictly speaking, BINs are entirely independent of prosecutions. It is not necessary to serve a BIN on a person before prosecuting that person for an offence, nor is it necessarily the case that every person who fails to comply with a BIN must be prosecuted.

BINs are regarded as a valuable enforcement tool in their own right. It is envisaged that the Chief Officer will only bring proceedings for an offence where there has been a failure to comply with a BIN.

The power to prosecute however is a discretionary power and there are no circumstances in which the MFB is required to prosecute.

In some circumstances, there is a duty to prosecute whereby the person on whom the BIN has been served elects proceedings to commence. This is provided for in sections 16 and 30 of the Infringements Act. Under those provisions, the person on whom the BIN is served may elect to have the matter of the 'infringement offence'1 heard in the Magistrates Court. If such an election were made in relation to a BIN issued by the Chief Officer, the Chief Officer would be required to commence a prosecution for the infringement offence.

Other than the penalty imposed by the BIN itself, there is no penalty for failing to comply with a BIN, nor does the Chief Officer have any mechanism for compelling a person to carry out any additional steps required by a BIN. In theory, an application could be made for an order pursuant to section 253 of the Building Act, but the Chief Officer does not currently have the power to make these applications. In practice, therefore, the effectiveness of a BIN depends on the potential for the person on whom it is served to be prosecuted for the prescribed offence if the BIN is not complied with.

1 An 'infringement offence' is defined under the Infringements Act to be any offence which may be the subject of an 'infringements notice' under any Act or statutory law. An infringement notice is a notice served in accordance with Part 2 of the Infringements Act. Therefore a BIN served in accordance with Part 2 of the Infringements Act is an infringements notice and the prescribed offence (found in the Building Regulations), for which the BIN is issued, is an infringement offence.

Prescribed Offences

The prescribed offences for the purposes of the definition of "prescribed offence" in section 254 of the Building Act are, offences against regulations 703, 707, 708, 709, 710, 1009, 1205, 1207, 1208, 1211, 1214, 1216, 1217 and 1218 of the Building Regulations. Of these regulations, the Chief Officer may serve a building infringement notice or commence legal proceedings against building owners or occupiers in respect of regulations 707, 708, 709, 710, 1009, 1205, 1207, 1208, 1211, 1214, 1216, 1217 and 1218.

Internal Reviews

What is an internal review?

When a person served with a BIN believes that:

  • The decision was contrary to law, or involved a mistake of identity;
  • Special circumstances apply to him or her; or
  • The infringing conduct should be excused because of certain exception circumstances;

That person may apply for the decision to serve the infringement notice to be reviewed. The review process is provide for by Division 3 of Part 2 of the Infringements Act. 

The internal review may result in the original infringement notice being confirmed, withdrawn or altered in some way.

​The Attorney-General's Guidelines to the Infringements Act 2006 provides guidelines for the procedures for internal review.

What can be reviewed?

The decision to issue a BIN can be reviewed. However, a application for review must be made before the period for bringing proceedings for the offence expires, in the case of BINs, this is 3 years from the date of the commission of the infringement offence.

Only 1 internal review can be requested in relation to each infringement notice.

Who conducts the review and how is it conducted?

Applications for review must be made to the Chief Officer.

Once the Chief Officer receives an application for internal review, he will suspend any procedures being used to enforce the BIN, and review that decision within 90 days. If at the conclusion of 90 days, the review has not been completed, the BIN is deemed to be withdrawn.

The Chief Officer must also ensure that the person reviewing the decision was not involved in making it.

If the Chief Officer believes it needs more information to conduct the review, he is empowered to request that information in writing. The review is then suspended for a maximum of 21 days from the date of the request for the new information. The applicant has 14 days to provide that information. If they fail to do so, the review must continue without it after 21 days.

At the conclusion of the internal review, the Chief Officer must send the applicant a written notice advising him or her of the outcome of the review within 21 days.

What are the possible outcomes of a review?

Once the Chief Officer has reviewed a decision to issue a BIN, it may confirm, withdraw or alter the relevant infringement notice.

Where a decision is confirmed, the BIN stands. The obligations under that notice remain, and the applicant remains liable to pay the infringement penalty.

Where an infringement notice is withdrawn, the matter may be:

  • ​Brought to an end;
  • ​Concluded, with the BIN substituted by an official warning;
  • ​Referred to Court for prosecution.

Additionally, the Chief Officer is empowered to alter the infringement notice in the following ways:

  • ​If the original notice prescribed steps, those steps may be altered in a manner consistent with the law upon which the infringement notice was based;
  • ​Costs associated with the infringement (other than the penalty itself) may be waived; or
  • ​An approved Payment Plan may be introduced.

However, if the application for review was made on the basis that 'special circumstances' apply to the person served with the BIN, the enforcement agency may only:

  • ​Confirm the notice and refer the matter to Court;
  • ​Withdraw the notice and substitute it with an official warning; or
  • ​Withdraw the notice completely.

Special circumstances are defined in the Infringements Act to mean a mental or intellectual disability, disorder, illness or disease; serious addiction to drugs, alcohol or a volatile substance; or homelessness.

Reference to 'special circumstances' is also made in the Attorney-General's Guidelines to the Infringements Act 2006.

Terminating the review

If the applicant for internal review elects to have the matter determined in a Court, the internal review process is terminated upon the making of that election.

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