Queensland Building and Construction Commission Act 1991

An Act to regulate the building industry

1Short title

This Act may be cited as the Queensland Building and Construction Commission Act 1991.

s 1 amd 2013 No. 38s 4

3Objects of Act

The objects of this Act are—

(a)to regulate the building industry—

(i)to ensure the maintenance of proper standards in the industry; and

(ii)to achieve a reasonable balance between the interests of building contractors and consumers; and

(b)to provide remedies for defective building work; and

(c)to provide support, education and advice for those who undertake building work and consumers; and

(d)to regulate domestic building contracts to achieve a reasonable balance between the interests of building contractors and building owners.

s 3 amd 2000 No. 10s 183sch 1; 2014 No. 57s 4

4Definitions

The dictionary in schedule 2 defines particular words used in this Act.

s 4 amd 1999 No. 43s 4(1)

Note—s 4 contained definitions for this Act. Definitions are now located in sch 2—Dictionary.

4AValue of building work carried out in stages

If building work is, or is to be, carried out in stages under a series of separate contracts, a reference in this Act to the value of the building work is a reference to the aggregate value of the building work carried out, or to be carried out, under those contracts.

s 4A amd 1994 No. 20s 3 sch

(prev s 4(2)) renum 1994 No. 20s 3 sch

4BAct binds all persons

This Act binds all persons, including the State and, so far as the legislative power of the Parliament permits, the Commonwealth and the other States.

s 4B ins 1999 No. 43s 5

4CCertain building contractors not bound

Parts 5 and 6 do not bind a building contractor to the extent that the business carried on by the building contractor consists of or includes—

(a)carrying out completed building inspections; or

(b)contract administration carried out in relation to building work designed by the building contractor.

s 4C ins 1999 No. 43s 5

sub 2003 No. 1s 5

pt hdg sub 2013 No. 38s 14sch 1

div hdg sub 2013 No. 38s 5

5Establishment and status

(1)The Queensland Building and Construction Commission is established.

(2)The commission—

(a)is a body corporate; and

(b)has a common seal; and

(c)may sue and be sued in its corporate name.

s 5 sub 2013 No. 38s 5

6Constitution

The commission consists of—

(a)the Queensland Building and Construction Board; and

(b)the commissioner and the organisational unit under the control of the commissioner; and

(c)the Service Trades Council.

Note—

The Service Trades Council is established under the Plumbing and Drainage Act 2002, section 5.

s 6 amd 1994 No. 20s 5

sub 2013 No. 38s 5

amd 2016 No. 11 s 14

7Functions

The commission has the following functions—

(a)to administer this Act and further its objects;

(b)any function given to it under another Act.

s 7 sub 2013 No. 38s 5

8Powers

(1)The commission has all the powers of an individual and may, for example—

(a)enter into contracts or agreements; and

(b)acquire, hold, deal with and dispose of, property; and

(c)employ staff; and

(d)appoint agents and attorneys; and

(e)engage consultants; and

(f)charge a fee for services and other facilities it supplies; and

(g)do anything else necessary or convenient to be done for its functions.

(2)Without limiting subsection (1), the commission has the powers given to it under an Act.

s 8 sub 2013 No. 38s 5

9Ministerial direction

(1)The Minister may give the commission a written direction in relation to the commission and its functions.

(2)The commission must comply with the direction.

(3)The Minister must cause a copy of the direction to be tabled in the Legislative Assembly within 7 sitting days after it is given.

(4)The commission’s annual report under the Financial Accountability Act 2009, section 63 for the year in which the direction is given must include a copy of the direction.

s 9 amd 1993 No. 76s 3sch 1

sub 1994 No. 20s 6

amd 1999 No. 43s 6

sub 2013 No. 38s 5

div hdg sub 2013 No. 38s 5

sdiv hdg ins 2013 No. 38s 5

10Establishment

The Queensland Building and Construction Board is established as the commission’s governing body.

s 10 amd 1994 No. 20s 7

sub 1999 No. 43s 7; 2013 No. 38s 5

11Functions

The board has the following functions—

(a)deciding the strategies and the operational, administrative and financial policies to be followed by the commission;

(b)ensuring the commission performs its functions and exercises its powers in a proper, effective and efficient way;

(c)making and reviewing policies governing the administration of this Act;

(d)providing guidance and leadership to the commissioner;

(da)providing guidance and leadership to the Service Trades Council, other than in relation to its function of conferring on national policy development and implementation for the trade under the Plumbing and Drainage Act 2002;

(e)advising the Minister on issues affecting—

(i)the building industry; and

(ii)consumers; and

(iii)the administration of this Act; and

(iv)the administration of the commission;

(f)advising the Minister about unfair or unconscionable trading practices affecting security of payments to contractors and subcontractors;

(g)consulting the building industry and its consumers and advancing their interests, consistently with the objects of this Act.

s 11 amd 1994 No. 20s 3 sch

sub 2013 No. 38s 5

amd 2016 No. 11 s 15

sdiv hdg ins 2013 No. 38s 5

12Appointment

(1)The board consists of 7 members appointed by the Governor in Council.

(2)In appointing a person as a member, the Governor in Council must have regard to the person’s ability to make a contribution to the effective and efficient performance of the commission’s functions.

(3)The members are appointed under this Act and not the Public Service Act 2008.

s 12 amd 1994 No. 20s 8; 1999 No. 43s 8

sub 2013 No. 38s 5

13Disqualification as member

A person is disqualified from becoming, or continuing as, a member if the person—

(a)has a recorded conviction, other than a spent conviction, for an indictable offence; or

(b)is an insolvent under administration; or

(c)is not able to manage a corporation because of the Corporations Act, part 2D.6; or

(d)is a relevant officer or contractor of the commission.

s 13 sub 2013 No. 38s 5

14Conditions of appointment

(1)A member is to be paid the remuneration and allowances decided by the Governor in Council.

(2)For matters not provided for by this Act, a member holds office on the terms and conditions decided by the Governor in Council.

s 14 sub 2013 No. 38s 5

15Term of appointment

(1)A member is appointed for the term, of no more than 3 years, stated in the member’s instrument of appointment.

(2)However, a person’s appointment as a member ends if, during the term of the appointment, the person becomes disqualified under section 13.

s 15 sub 1999 No. 43s 9; 2013 No. 38s 5

16Chairperson

(1)The Governor in Council must appoint a member as the chairperson of the board.

(2)A person may be appointed as the chairperson when the person is appointed as a member.

(3)The chairperson holds office for the term, ending no later than the person’s term of appointment as a member, stated in the person’s instrument of appointment as chairperson.

(4)However, a person’s appointment as chairperson ends if, during the term of the appointment, the person stops being a member.

s 16 amd 1994 No. 20s 3 sch

sub 2013 No. 38s 5

17Deputy chairperson

(1)The Governor in Council must appoint a member, other than the chairperson, as deputy chairperson of the board.

(2)The deputy chairperson holds office for the term, ending no later than the person’s term of appointment as a member, stated in the person’s instrument of appointment as deputy chairperson.

(3)However, a person’s appointment as deputy chairperson ends if, during the term of the appointment, the person stops being a member.

(4)The deputy chairperson must act as chairperson—

(a)during a vacancy in the office of chairperson; and

(b)during all periods when the chairperson is absent from duty or, for another reason, can not perform the functions of the office.

(5)A person may be appointed as the deputy chairperson when the person is appointed as a member.

s 17 amd 1994 No. 20s 3 sch

sub 2013 No. 38s 5

amd 2016 No. 11 s 36 sch

18Resignation

(1)A member may resign by signed notice given to the Minister.

(2)Also, a member may resign the office of chairperson or deputy chairperson by signed notice given to the Minister.

(3)The resignation takes effect—

(a)on the day the notice is given; or

(b)if a later day is stated in the notice—on the later day.

(4)A person resigning from the office of chairperson or deputy chairperson may continue to be a member.

s 18 amd 1994 No. 20 ss 9, 3 sch; 1998 No. 13s 188; 1999 No. 43s 10; 2003 No. 36s 38

sub 2013 No. 38s 5

sdiv hdg ins 2013 No. 38s 5

19Board’s policy

(1)The board may make a policy governing the administration of this Act.

(2)However, the policies can not prevent the commissioner acting independently when making decisions—

(a)about the action to be taken about a licensee’s licence; or

(b)about rectification of building work or remediation of consequential damage; or

(c)relating to the statutory insurance scheme.

(3)Also, the policies do not take effect until they have been approved by regulation.

(4)The commission must—

(a)publish the policies on its website; and

(b)keep copies of them available for inspection, without charge, at the commission’s office at any time that office is open to the public; and

(c)if asked, advise where copies of them may be obtained.

s 19 sub 1994 No. 20s 10; 2013 No. 38s 5

amd 2014 No. 57s 5

sdiv hdg ins 2013 No. 38s 5

20Conduct of business

Subject to this division and any requirement prescribed under a regulation, the board may conduct its business, including its meetings, in the way it considers appropriate.

s 20 amd 1994 No. 20s 3 sch; 2007 No. 20s 51

sub 2013 No. 38s 5

20AMeetings

(1)The chairperson must convene a meeting when requested by at least 3 members.

(2)At a meeting of the board—

(a)4 members constitute a quorum; and

(b)a question is to be decided by a majority of votes of the members present and voting; and

(c)each member present has 1 vote on any question arising for decision and, if the votes are equal, the member presiding at the meeting has a casting vote.

(3)The board must keep minutes of its meetings.

s 20A ins 2013 No. 38s 5

20BCommittees

The board, or the Minister, may appoint committees to advise the board on particular subjects.

s 20B ins 2013 No. 38s 5

20CDisclosure of interests

(1)This section applies to a member if—

(a)the member has an interest in an issue being considered, or about to be considered, by the board; and

(b)the interest conflicts or may conflict with the proper performance of the member’s duties about the consideration of the issue.

(2)After the relevant facts come to the member’s knowledge, the member must disclose the nature of the interest to a board meeting.

(3)Unless the board otherwise directs, the member must not—

(a)be present when the board considers the issue; or

(b)take part in a decision of the board about the issue.

(4)The member must not be present when the board is considering whether to give the direction.

(5)If there is another person who must, under subsection (2), also disclose an interest in the issue, the other person must not—

(a)be present when the board is considering whether to give the direction; or

(b)take part in making the decision about giving the direction.

(6)Subsections (7) and (8) apply if—

(a)because of this section, a member is not present at a board meeting for considering or deciding the issue, or for considering or deciding whether to give the direction; and

(b)there would be a quorum if the member were present.

(7)The remaining members present are a quorum of the board for considering or deciding the issue, or for considering or deciding whether to give the direction, at the meeting.

(8)If there are no members who may remain present for considering or deciding the issue, the Minister may consider and decide the issue.

(9)The disclosure must be recorded in the board’s minutes.

s 20C ins 2013 No. 38s 5

div hdg sub 2013 No. 38s 5

20DAppointment

(1)The commission must have a commissioner.

(2)The commissioner must be appointed by the board with the Minister’s prior written approval.

(3)The commissioner is employed under this Act and not under the Public Service Act 2008.

s 20D ins 2013 No. 38s 5

20EDisqualification as commissioner

A person is disqualified from becoming, or continuing as, the commissioner if the person—

(a)has a recorded conviction, other than a spent conviction, for an indictable offence; or

(b)is an insolvent under administration; or

(c)is not able to manage a corporation because of the Corporations Act, part 2D.6; or

(d)is a member or a contractor of the commission.

s 20E ins 2013 No. 38s 5

20FConditions of appointment

For matters not provided for under this Act or stated in the contract of employment, the commissioner holds office on the terms of appointment decided by the board with the Minister’s written approval.

s 20F ins 2013 No. 38s 5

20GTerm of appointment

(1)The commissioner holds office for the term, not more than 3 years, stated in his or her contract of employment.

(2)However, a person’s appointment as commissioner ends if, during the term of the appointment, the person becomes disqualified under section 20E.

(3)Although the board may, at any time, remove a person appointed as commissioner, the removal does not affect any rights to compensation to which the person is entitled under his or her contract of employment.

s 20G ins 2013 No. 38s 5

20HResignation

The commissioner may resign by signed notice given to the chairperson of the board.

s 20H ins 2013 No. 38s 5

20IAppointment of acting commissioner

The board may only act under the Acts Interpretation Act 1954, section 24B or 25 in appointing a person to act in the office of commissioner with the Minister’s prior written approval.

s 20I ins 2013 No. 38s 5

20JRole of the commissioner

(1)The commissioner is responsible for the following—

(a)the overall management of the organisational unit under the control of the commissioner;

(b)administration of the licensing system established by this Act;

(c)administration of a system of inspection;

(d)issuing directions for rectification of building work under this Act;

(e)taking disciplinary and other proceedings under this Act;

(f)assessing and approving payment of insurance claims;

(g)undertaking strategic planning;

(h)issuing warnings to the public or any section of the public;

(i)providing and promoting consumer education;

(j)providing an advisory service to consumers about—

(i)their statutory rights and obligations; and

(ii)insurance claims that may arise about building work; and

(iii)the commission’s role, functions and operating procedures; and

(iv)any incidental matters;

(k)providing courses of instruction for—

(i)persons seeking to obtain licences; and

(ii)licensees; and

(iii)persons proposing to carry out building work as owner-builders; and

(iv)other persons seeking to acquire knowledge or expertise in subjects related to the building industry;

(l)performing a function given to the commissioner under an Act.

(2)In undertaking the strategic planning, the commissioner must have regard to cyclical industry conditions to ensure the commission’s available revenue base, and its assets and reserves, are enough to allow it to maintain the services it is required to provide.

(3)The commissioner has all the powers necessary for carrying out those responsibilities and any function (an additional function) the commissioner is authorised by another Act to carry out.

(4)In carrying out an additional function, the commissioner may adopt the procedures of this Act unless the Act authorising the function prescribes another procedure.

s 20J ins 2013 No. 38s 5

20KRelationship between commissioner and board

(1)In carrying out the commissioner’s responsibilities, other than performing an additional function, the commissioner must give effect to any policy or direction of the board relevant to the responsibility.

(2)However, the commissioner must act independently of the board when making any of the following types of decisions giving effect to the board’s policies—

(a)a decision about the action to be taken about a licensee’s licence;

(b)a decision about rectification or completion of building work;

(c)a decision relating to the statutory insurance scheme.

(3)The commissioner must—

(a)report regularly to the board on the administration of this Act; and

(b)at the request of the board, provide the board with a special report on a particular subject.

(4)In this section—

additional function see section 20J(3).

s 20K ins 2013 No. 38s 5

20LCommissioner not to engage in other paid employment

The commissioner must not, without the board’s prior written approval—

(a)engage in paid employment outside the duties of the office of commissioner; or

(b)actively take part in the activities of a business, or in the management of a corporation carrying on business.

s 20L ins 2013 No. 38s 5

20MConflicts of interest

If the commissioner has an interest that conflicts or may conflict with the discharge of the commissioner’s responsibilities, the commissioner—

(a)must disclose the nature of the interest and conflict to the board as soon as practicable after the relevant facts come to the commissioner’s knowledge; and

(b)must not take action or further action concerning a matter that is, or may be, affected by the conflict unless authorised by the board.

s 20M ins 2013 No. 38s 5

div hdg prev div 5 hdg om 1994 No. 20s 11

pres div 5 hdg ins 1999 No. 43s 11

21Appointment of insurance manager

(1)There is to be an insurance manager of the commission.

(2)The commission must—

(a)appoint an individual to be the insurance manager; or

(b)enter into a work performance arrangement under which an employee of the employing office or of another government entity holds office as the insurance manager.

(3)If the commission appoints a person to be the insurance manager under subsection (2)(a), the remuneration and conditions of appointment of the insurance manager are to be decided by the commission.

(4)The commission may appoint a person to act, or enter into a work performance arrangement under which an employee of the employing office or of another government entity acts, as insurance manager of the commission—

(a)when there is a vacancy in the position of insurance manager of the commission; or

(b)for any period, or all periods, when the insurance manager is absent from duty or, for any other reason, can not perform the functions of the position.

s 21 prev s 21 om 1994 No. 20s 11

pres s 21 ins 1999 No. 43s 11

amd 2007 No. 20s 52; 2013 No. 38s 14sch 1

22Role of insurance manager

(1)The insurance manager must report regularly to the board on the administration of the statutory insurance scheme and, if asked by the board, must give the board a special report on a particular subject.

(2)The insurance manager is independent of the general manager’s direction in reporting under subsection (1), but is otherwise subject to the general manager’s direction.

s 22 prev s 22 om 1994 No. 20s 11

pres s 22 ins 1999 No. 43s 11

25General Statutory Fund

(1)A fund called the General Statutory Fund is established.

(2)The fund consists of—

(a)the balance of the Builders’ Registration Board General Fund as at the commencement of this section; and

(b)any money received or recovered by the commission except in connection with the insurance scheme; and

(c)all amounts transferred from the Insurance Fund under section 26.

(3)The following amounts are to be paid from the fund—

(a)costs of administering this Act, apart from the costs of administering the statutory insurance scheme;

(b)amounts mentioned in subsection (4A).

(4)A regulation may state a single amount that is to be transferred from the fund to the Insurance Fund.

(4A)The commission must, at times decided by the commission, transfer amounts from the fund to the Insurance Fund in payment of the single amount stated in the regulation made under subsection (4).

(5)The commission may apply any amount surplus to the commission’s budgetary requirements for a particular financial year to encourage or assist education or research related to the building industry.

s 25 amd 1996 No. 54s 9 sch; 1999 No. 43s 12; 2000 No. 10s 183sch 1; 2002 No. 51s 101 sch; 2003 No. 1s 7; 2013 No. 38s 14sch 1

26Insurance Fund

(1)A fund called the Insurance Fund is established.

(2)The fund consists of—

(a)the balance of the Builders’ Registration Board Insurance Fund as at the commencement of this section; and

(b)all money received or recovered by the commission in connection with the statutory insurance scheme; and

(c)all amounts transferred from the General Statutory Fund under section 25.

(3)The following amounts are to be paid from the fund—

(a)the costs of administering the statutory insurance scheme;

(b)the costs of paying out claims under the statutory insurance scheme.

(4)A regulation may require the fund to be managed—

(a)in the way prescribed under a regulation; or

(b)in accordance with an external standard of fund administration prescribed under a regulation.

s 26 amd 1994 No. 20s 3 sch; 1996 No. 54s 9 sch; 1999 No. 43s 13; 2003 No. 1s 8; 2003 No. 36s 39; 2013 No. 38s 14sch 1

26AManagement of statutory insurance scheme

The commission must ensure that the statutory insurance scheme is managed in accordance with actuarially sustainable principles so that the amounts paid into the Insurance Fund under section 26(2) will be sufficient to satisfy the amounts to be paid from the Insurance Fund under section 26(3).

s 26A ins 2003 No. 36s 40

amd 2013 No. 38s 14sch 1

27Application of financial Acts

(1)The commission is—

(a)a statutory body under the Financial Accountability Act 2009; and

(b)a statutory body under the Statutory Bodies Financial Arrangements Act 1982 (the SBFA).

(2)The SBFA, part 2B, sets out the way in which the commission’s powers under this Act are affected by the SBFA.

s 27 prev s 27 om 1992 No. 36s 2sch 1

pres s 27 ins 1996 No. 54s 9 sch

sub 2013 No. 38s 6

28Commission’s obligation to report suspected offence

If the commission has reason to suspect that an offence resulting in loss of money, or loss or damage to other property has been committed, the matter must be reported to the auditor-general and the police.

s 28 amd 2013 No. 38s 14sch 1

div hdg prev div 7 hdg om 1994 No. 20s 12

pres div 7 hdg ins 2007 No. 20s 53

29Commission may enter into work performance arrangements

(1)The commission may enter into, and give effect to, a work performance arrangement with—

(a)the employing office; or

(b)the appropriate authority of another government entity.

(2)A work performance arrangement may make provision for all matters necessary or convenient to be provided under the arrangement.

(3)For example, a work performance arrangement may provide for—

(a)the appointment of a person to an office, and the holding of the office by the person, for the arrangement; and

(b)the authorising of a person to exercise powers for the arrangement; and

(c)whether payment is to be made for work done under the arrangement and, if so, what payment is to be made and who is to make the payment.

(4)A person performing work for the commission under a work performance arrangement entered into under subsection (1)—

(a)is not employed by the commission; and

(b)remains an employee of the employing office, or an employee of the other government entity whose appropriate authority is a party to the arrangement.

(5)To remove any doubt, it is declared that the commission does not have power to employ a person performing work for the commission under a work performance arrangement entered into under subsection (1).

s 29 prev s 29 sub 1992 No. 36s 2sch 1

om 1994 No. 20s 12

pres s 29 ins 2007 No. 20s 53

amd 2013 No. 38s 14sch 1

pt hdg ins 2007 No. 20s 54

amd 2013 No. 38s 14sch 1

div hdg ins 2007 No. 20s 54

29AEstablishment of employing office

(1)The Queensland Building and Construction Employing Office is established.

(2)The employing office consists of—

(a)the executive officer; and

(b)the employees of the employing office.

(3)The employing office is a separate entity from the commission.

s 29A ins 2007 No. 20s 54

amd 2013 No. 38s 14sch 1

29BEmploying office represents the State

(1)The employing office represents the State.

(2)Without limiting subsection (1), the employing office has the status, privileges and immunities of the State.

s 29B ins 2007 No. 20s 54

29CFunctions of employing office

(1)The main functions of the employing office are—

(a)entering into, for the State, a work performance arrangement with the commission under which employees of the employing office perform work for the commission; and

(b)employing, for the State, staff to perform work for the commission under the work performance arrangement; and

(c)doing anything incidental to the discharge of the functions mentioned in paragraphs (a) and (b).

(2)Also, the employing office has any other function conferred on the employing office under this or another Act.

(3)This section does not limit the employing office’s power to enter into and give effect to a work performance arrangement under section 29G with a government entity other than the commission.

s 29C ins 2007 No. 20s 54

amd 2013 No. 38s 14sch 1

div hdg ins 2007 No. 20s 54

29DAppointment of executive officer

(1)There is to be an executive officer of the employing office.

(2)The executive officer is to be appointed by the Governor in Council.

(3)The executive officer is appointed under this Act and not under the Public Service Act 2008.

s 29D ins 2007 No. 20s 54

amd 2009 No. 25s 83 sch

29EExecutive officer acting for employing office

(1)The employing office acts through the executive officer.

(2)Anything done by the executive officer in the name of, or for, the employing office is taken to have been done by the employing office.

s 29E ins 2007 No. 20s 54

div hdg ins 2007 No. 20s 54

29FEmploying office may employ staff

(1)The employing office may, for the State, employ staff.

(2)A person employed under subsection (1) is an employee of the employing office.

(3)The employing office may decide the terms of employment of the employees of the employing office.

(4)Subsection (3) applies subject to any relevant industrial instrument.

(5)Employees of the employing office are employed under this Act and not under the Public Service Act 2008.

s 29F ins 2007 No. 20s 54

amd 2009 No. 25s 83 sch

29GEmploying office may enter into work performance arrangements

(1)The employing office may, for the State, enter into and give effect to a work performance arrangement with—

(a)the commission; or

(b)the appropriate authority of another government entity.

(2)A work performance arrangement may make provision for all matters necessary or convenient to be provided under the arrangement.

(3)For example, a work performance arrangement may provide for—

(a)the appointment of a person to an office, and the holding of the office by the person, for the arrangement; and

(b)the authorising of a person to exercise powers for the arrangement; and

(c)whether payment is to be made for work done under the arrangement and, if so, what payment is to be made and who is to make the payment.

(4)A person performing work for the commission or other government entity under a work performance arrangement entered into under subsection (1)—

(a)is not employed by the commission or other government entity; and

(b)remains an employee of the employing office.

(5)To remove any doubt, it is declared that the commission or another government entity does not have power to employ a person performing work for the commission or other government entity under a work performance arrangement entered into under subsection (1).

s 29G ins 2007 No. 20s 54

amd 2013 No. 38s 14sch 1

div hdg ins 2007 No. 20s 54

29HEmploying office is statutory body

(1)The employing office is a statutory body under—

(a)the Financial Accountability Act 2009; and

(b)the Statutory Bodies Financial Arrangements Act 1982.

(2)For applying the Financial Accountability Act 2009 to the employing office as a statutory body—

(a)the executive officer is taken to be the chairperson of the employing office; and

(b)the Financial Accountability Act 2009 is taken to require the executive officer to consider the annual financial statements and the auditor-general’s report as soon as practicable after they are received by the employing office; and

(c)the Financial Accountability Act 2009 is taken to require the executive officer to consider any observations, suggestions or comments given to the executive officer under the Auditor-General Act 2009 as soon as practicable after the executive officer receives them.

s 29H ins 2007 No. 20s 54

amd 2009 No. 9s 136sch 1

30Classes of contractors’ licences

(1)A licence (a contractor’s licence) may be issued authorising the licensee—

(a)to carry out all classes of building work; or

(b)to carry out building work of 1 or more classes specified in the licence.

(2)Contractors’ licences are to be divided into classes by regulation—

(a)according to whether the licence relates to all classes of building work or is limited to a specified class or specified classes of building work; and

(b)if the licence is limited to a specified class, or specified classes, of building work—according to the class or classes of building work to which it relates.

(3)A contractor’s licence may be issued for any class of licence.

(4)However, a regulation may specify a class of licence to be a class that may be held and renewed by a person who held that class immediately before the commencement of the regulation specifying the class but may not, after the commencement of that regulation, be applied for by, or issued to, another person.

s 30 amd 2003 No. 1s 9; 2007 No. 47s 5

30ANominee supervisor’s licence

(1)A licence (a nominee supervisor’s licence) may be issued authorising an individual—

(a)if the individual is the nominee for a licensed contractor that is a company, to—

(i)provide supervisory services for building work carried out under the company’s licence; and

(ii)perform the functions required of a nominee under this Act; or

(b)if the individual is an officer or employee of a company, other than the company’s nominee—to personally supervise building work carried out under the company’s licence.

(2)An individual who holds a nominee supervisor’s licence and who is the employee of a licensed contractor that is an individual may personally supervise building work carried out under the contractor’s licence.

(3)Nominee supervisors’ licences are to be divided into classes by regulation—

(a)according to whether the licence relates to all classes of building work or is limited to a specified class or specified classes of building work; and

(b)if the licence is limited to a specified class, or specified classes, of building work—according to the class or classes of building work to which it relates.

(4)A nominee supervisor’s licence may be issued for any class of licence.

s 30A ins 2007 No. 47s 6

30BSite supervisor’s licence

(1)A licence (a site supervisor’s licence) may be issued authorising an individual, while the individual is an officer or employee of a licensed contractor that is a company, to personally supervise building work carried out under the company’s licence.

(2)A licence (also a site supervisor’s licence) may be issued authorising an individual, while the individual is an employee of a licensed contractor that is an individual, to personally supervise building work carried out under the contractor’s licence.

(3)Site supervisors’ licences are to be divided into classes by regulation—

(a)according to whether the licence relates to all classes of building work or is limited to a specified class or specified classes of building work; and

(b)if the licence is limited to a specified class, or specified classes, of building work—according to the class or classes of building work to which it relates.

(4)A site supervisor’s licence may be issued for any class of licence.

s 30B ins 2007 No. 47s 6

30CFire protection occupational licence

(1)A licence (a fire protection occupational licence) may be issued authorising an individual, while the individual is an officer or employee of a licensed contractor that is a company, to personally carry out and personally supervise fire protection work carried out under the company’s licence.

(2)A licence (also a fire protection occupational licence) may be issued authorising an individual, while the individual is an employee of a licensed contractor that is an individual, to personally carry out and personally supervise fire protection work carried out under the contractor’s licence.

(3)Fire protection occupational licences are to be divided into classes by regulation—

(a)according to whether the licence relates to all classes of fire protection work or is limited to a specified class or specified classes of fire protection work; and

(b)if the licence is limited to a specified class, or specified classes, of fire protection work—according to the class or classes of fire protection work to which it relates.

(4)A fire protection occupational licence may be issued for any class of licence.

s 30C ins 2007 No. 47s 6

31Entitlement to contractor’s licence

(1)A person (not being a company) is entitled to a contractor’s licence if the commission is, on application by that person, satisfied that—

(a)the applicant is a fit and proper person to hold the licence; and

(b)the applicant has the qualifications and experience required by regulation in relation to a licence of the relevant class; and

(c)the applicant satisfies the relevant financial requirements stated in the board’s policies; and

(d)the applicant can lawfully work in Queensland; and

(e)the applicant is not an excluded individual for a relevant event or a permanently excluded individual; and

(f)the applicant is not a disqualified individual; and

(g)the applicant is not a banned individual; and

(h)the applicant does not have an unpaid judgment debt for an amount the commission may recover under section 71.

(2)A company is entitled to a contractor’s licence if the commission is satisfied, on application by that company for a licence, that—

(a)the directors, secretary and influential persons for the company are fit and proper persons to exercise control or influence over a company that holds a contractor’s licence; and

(b)the company’s nominee holds a licence specifically identifying, as a class of building work that the nominee may supervise, the same class of building work for which the licence is sought by the company; and

(c)the applicant satisfies the relevant financial requirements stated in the board’s policies; and

(d)the company is not an excluded company; and

(e)the company is not a company for which a banned or disqualified individual is a director, secretary, influential person or nominee; and

(f)neither the company, nor a director, secretary, influential person or nominee of the company has an unpaid judgment debt for an amount the commission may recover under section 71.

(3)In deciding whether a particular person is a fit and proper person to hold a contractor’s licence or to exercise control or influence over a company that holds a contractor’s licence, the commission may have regard to—

(a)commercial and other dealings in which that person has been involved and the standard of honesty and integrity demonstrated in those dealings; and

(b)any failure by that person to carry out commercial or statutory obligations and the reasons for the failure; and

(c)tier 1 defective work carried out by the person, whether or not the person received a notice under section 67AH, 67AI, 67AL or 67AM stating a term of ban for the work; and

(ca)if the person is an enforcement debtor under an enforcement order for an infringement notice offence for this Act—whether the person has taken steps under the State Penalties Enforcement Act 1999 to discharge the amount stated in the enforcement order; and

(d)any other relevant factor.

(4)However, the commission may not have regard to the matter mentioned in subsection (3)(ca) if—

(a)the person has applied for cancellation of the relevant enforcement order and the application for cancellation has not been finally decided; or

(b)28 days have not elapsed since the date of the enforcement order.

s 31 amd 1999 No. 43s 14; 2003 No. 1s 10; 2007 No. 47s 7; 2013 No. 38s 14sch 1; 2014 No. 57s 80sch 1

31ANo entitlement to contractor’s licence if particular partners

A person (whether an individual or a company) is not entitled to a contractor’s licence if the person carries on, or intends to carry on, business under the licence in partnership with another person who is—

(a)an excluded individual; or

(b)a permanently excluded individual; or

(c)a convicted company officer; or

(d)a banned individual; or

(e)a disqualified individual; or

(f)an excluded company; or

(g)a company for which a permanently excluded individual is a director, secretary, influential person or nominee; or

(h)a company for which a convicted company officer is a director, secretary, influential person or nominee; or

(i)a company for which a banned individual is a director, secretary, influential person or nominee; or

(j)a company for which a disqualified individual is a director, secretary, influential person or nominee.

s 31A ins 2003 No. 1s 11

32Entitlement to a nominee supervisor’s licence

(1)An individual is entitled to a nominee supervisor’s licence if the commission is, on application by the individual, satisfied that—

(a)the applicant has the qualifications and experience required by regulation for a licence of the relevant class; and

(b)the applicant can lawfully work in Queensland; and

(c)the applicant is not an excluded individual for a relevant event or a permanently excluded individual; and

(d)the applicant is not a banned individual; and

(e)the applicant is not a disqualified individual; and

(f)the applicant does not have an unpaid judgment debt for an amount the commission may recover under section 71; and

(g)the applicant is a fit and proper person to hold the licence.

(2)In deciding whether an applicant is a fit and proper person to hold the licence, the commission may have regard to—

(a)commercial and other dealings in which the applicant has been involved and the standard of honesty and integrity demonstrated in those dealings; and

(b)any failure by the applicant to carry out commercial or statutory obligations and the reasons for the failure; and

(c)tier 1 defective work carried out by the applicant, whether or not the applicant received a notice under section 67AH, 67AI, 67AL or 67AM stating a term of ban for the work; and

(d)if the person is an enforcement debtor under an enforcement order for an infringement notice offence for this Act—whether the person has taken steps under the State Penalties Enforcement Act 1999 to discharge the amount stated in the enforcement order; and

(e)any other relevant factor.

(3)However, the commission may not have regard to the matter mentioned in subsection (2)(d) if—

(a)the person has applied for cancellation of the relevant enforcement order and the application for cancellation has not been finally decided; or

(b)28 days have not elapsed since the date of the enforcement order.

s 32 sub 2007 No. 47s 8

amd 2013 No. 38s 14sch 1; 2014 No. 57s 80sch 1

32AAEntitlement to a site supervisor’s licence

(1)An individual is entitled to a site supervisor’s licence if the commission is, on application by the individual, satisfied that—

(a)the applicant has the qualifications required by regulation for a licence of the relevant class; and

(b)the applicant can lawfully work in Queensland; and

(c)the applicant is not a banned individual; and

(d)the applicant is a fit and proper person to hold the licence.

(2)In deciding whether an applicant is a fit and proper person to hold the licence, the commission may have regard only to—

(a)tier 1 defective work carried out by the applicant, whether or not the applicant received a notice under section 67AH, 67AI, 67AL or 67AM stating a term of ban for the work; and

(b)if the person is an enforcement debtor under an enforcement order for an infringement notice offence for this Act—whether the person has taken steps under the State Penalties Enforcement Act 1999 to discharge the amount stated in the enforcement order.

(3)However, the commission may not have regard to the matter mentioned in subsection (2)(b) if—

(a)the person has applied for cancellation of the relevant enforcement order and the application for cancellation has not been finally decided; or

(b)28 days have not elapsed since the date of the enforcement order.

s 32AA ins 2007 No. 47s 8

amd 2013 No. 38s 14sch 1; 2014 No. 57s 80sch 1

32ABEntitlement to a fire protection occupational licence

(1)An individual is entitled to a fire protection occupational licence if the commission is, on application by the individual, satisfied that—

(a)the applicant has the qualifications required by regulation for a licence of the relevant class; and

(b)the applicant can lawfully work in Queensland; and

(c)the applicant is not a banned individual; and

(d)the applicant is a fit and proper person to hold a licence.

(2)In deciding whether an applicant is a fit and proper person, the commission may have regard only to—

(a)tier 1 defective work carried out by the applicant, whether or not the applicant received a notice under section 67AH, 67AI, 67AL or 67AM stating a term of ban for the work; and

(b)if the person is an enforcement debtor under an enforcement order for an infringement notice offence for this Act—whether the person has taken steps under the State Penalties Enforcement Act 1999 to discharge the amount stated in the enforcement order.

(3)However, the commission may not have regard to the matter mentioned in subsection (2)(b) if—

(a)the person has applied for cancellation of the relevant enforcement order and the application for cancellation has not been finally decided; or

(b)28 days have not elapsed since the date of the enforcement order.

s 32AB ins 2007 No. 47s 8

amd 2013 No. 38s 14sch 1; 2014 No. 57s 80sch 1

32AException for s 30(4) licences

This division is subject to section 30(4).

s 32A ins 2003 No. 1s 12

33Application for licence

(1)An application for a licence—

(a)must be made in accordance with the regulations; and

(b)must be accompanied by—

(i)if the applicant is an individual, 2 recent passport-size photographs of the applicant suitable for inclusion in a licence and certified in the way prescribed by regulation; and

(ii)the appropriate application fee fixed by regulation.

(2)An applicant for a licence must at the request of the commission provide any further information or evidence that the commission may require to decide the application.

(3)In deciding whether to give a licence, the commission may make inquiries and investigations that are reasonable and appropriate in the circumstances, including for example by—

(a)seeking confirmation about the experience of applicants through site inspections and referee checks; and

(b)carrying out checks with the Australian Securities and Investment Commission, bankruptcy registers and credit bureaus.

s 33 amd 1999 No. 43s 15; 2007 No. 47s 9; 2013 No. 38s 14sch 1

34Grant of licence

(1)If the commission is satisfied, on an application under this division, that the applicant is entitled to a licence, the commission must issue a licence of the appropriate class.

(2)A licence is to be in the form of a card and must—

(a)state the licensee’s name and licence number; and

(b)state the type of licence; and

(c)state the class of building work the licensee is licensed to carry out; and

(d)if the licensee is an individual, contain a recent photograph of the licensee; and

(e)state when the licence is due for renewal.

(3)The commission may also issue a licence certificate in a form determined by the commission.

(4)If, on application by a licensee and payment of the fee required by regulation, the commission is satisfied that a licence card or a licence certificate has been lost, damaged or destroyed, the commission may issue a new licence card or licence certificate.

s 34 amd 1992 No. 36s 2sch 1; 1994 No. 20s 13; 1999 No. 43s 16; 2000 No. 20s 29sch 3; 2007 No. 47s 10; 2013 No. 38s 14sch 1

div hdg ins 2000 No. 20s 29sch 3

34APINs

(1)The commission may give a licensee a confidential personal identification number (a PIN) for use by the licensee in the licensee’s dealings with the commission.

(2)When the commission gives a PIN to a licensee, the commission must also advise the licensee of the commission’s requirements for the licensee’s keeping and use of the PIN.

s 34A ins 2000 No. 20s 29sch 3

amd 2013 No. 38s 14sch 1

35Imposition of conditions etc. on grant of licence

(1)A licence may be granted subject to such conditions as the commission considers appropriate.

(2)Without limiting subsection (1), a licence for which an occupational licence is required is taken to be subject to the condition that the licensee hold, and continue to hold, for the term of the licence, the occupational licence.

(3)Without limiting subsection (1), a contractor’s licence is subject to the condition that—

(a)the licensee’s financial circumstances must at all times satisfy the relevant financial requirements stated in the board’s policies; and

(b)variations of the contractor’s turnover and assets must be notified, or notified and approved, in accordance with the relevant financial requirements stated in the board’s policies.

s 35 amd 1999 No. 43s 17; 2003 No. 1s 13; 2013 No. 38s 14sch 1

36Subsequent imposition of conditions etc.

(1)If the commission has reason to believe—

(a)that a licensee may have insufficient financial resources to meet possible liabilities in relation to building work; or

(b)that there is some other proper ground for imposing a condition on the licence;

the commission may notify the licensee of the proposed condition and invite the licensee, within a period specified in the notice, to make written representations on the proposal.

(2)After considering the written representations (if any) made by the licensee, the commission, if satisfied that the condition is appropriate, may, by notice to the licensee, impose the condition.

(3)A condition may be imposed preventing the licensee from continuing to carry on business until the licensee has lodged with the commission appropriate security against possible liabilities in relation to building work.

(3A)A condition may be imposed requiring the licensee to complete a course module included in technical or managerial national competency standards relevant to the building industry.

(3B)A condition may be imposed requiring the licensee to give to the commission specified documents that relate to the licensee’s obligations under part 4 or schedule 1B.

(3C)Subsections (3), (3A) and (3B) do not limit the power to impose conditions under subsection (2).

(4)The commission may, by subsequent notice to the licensee, vary or revoke a condition imposed under this section.

(5)A notice imposing or varying a condition must inform the licensee of the licensee’s right to apply for a review of the commission’s decision to impose or vary the condition.

s 36 amd 1999 No. 43s 18; 2003 No. 1s 14; 2013 No. 38s 14sch 1; 2014 No. 57s 80sch 1

div hdg sub 2007 No. 47s 11

37Period of renewal

A licensee for any of the following licences may choose to renew the licence for a period of either 1 year or 3 years—

(a)a contractor’s licence;

(b)a nominee supervisor’s licence;

(c)a site supervisor’s licence;

(d)a fire protection occupational licence.

s 37 amd 1992 No. 36s 2sch 1

sub 2007 No. 47s 11; 2014 No. 57s 6

37ACommission to advise licensee before licence due for renewal

(1)The commission must give notice in writing to a licensee at least 28 days before the renewal day for the licensee’s licence.

(2)The notice must state the following—

(a)the renewal day for the licensee’s licence;

(b)if the licensee is an individual, whether or not the commission requires 2 recent passport-size photographs of the licensee suitable for inclusion in a licence and certified in the way prescribed by regulation;

(c)the renewal fee for the licence and that it must be paid on or before the renewal day;

(d)for a contractor’s licence, when the documentary evidence required by the financial requirements stated in the board’s policies must be given to the commission.

s 37A ins 2007 No. 47s 11

amd 2013 No. 38s 14sch 1; 2014 No. 57s 7

37BApplications for renewal of licence

(1)A licensee may apply to the commission for the renewal of the licensee’s licence before the renewal day for the licence.

(2)The application must—

(a)be made in the way prescribed under a regulation; and

(b)be accompanied by the appropriate fee prescribed by regulation for the renewal; and

(c)if the commission has advised that it requires 2 recent passport-size photographs of the licensee suitable for inclusion in a licence and certified in the way prescribed by regulation—be accompanied by the photographs.

(3)If requested by the commission by written notice, the licensee must, within the reasonable time stated in the notice, give the commission the further information or evidence the commission requires to decide whether the applicant continues to be entitled to hold a licence.

s 37B ins 2007 No. 47s 11

amd 2013 No. 38s 14sch 1; 2014 No. 57s 8

38Suspension for non-payment of fee

(1)If a licensee fails to pay the appropriate licence fee within the time allowed under the regulations, the commission may, by notice to the licensee, suspend the licence.

(2)A suspension imposed under this section terminates on payment of the appropriate fee.

(3)If a licence has remained in suspension under this section for more than 3 months, the commission may, by notice to the licensee, cancel the licence.

s 38 amd 2007 No. 47s 12; 2013 No. 38s 14sch 1; 2014 No. 57s 10

38AReceipt of fee does not revive licence

(1)This section applies if, despite the cancellation or suspension of a licence under this Act, other than a suspension under section 38(1), the commission accepts the payment of an amount purporting to be the licence fee for the licence.

(2)The licence does not stop being cancelled or suspended merely because of the commission’s acceptance of the payment.

(3)Subsection (2) applies whether or not the commission gives a receipt for the payment.

s 38A ins 1999 No. 43s 19

amd 2013 No. 38s 14sch 1

div hdg prev div 6 hdg om 2007 No. 47s 13

pres div 6 hdg ins 2014 No. 57s 11

39Restoration of licence

(1)This section applies if a licence has been cancelled under section 38(3).

(2)The licensee may request that the commission restore the licence.

(3)The commission must restore the licence if the request—

(a)is made within 3 months of the licence being cancelled; and

(b)is accompanied by the fee prescribed by regulation.

s 39 prev s 39 amd 1992 No. 36s 3sch 1; 1999 No. 43s 20; 2000 No. 10s 183sch 1; 2003 No. 1s 15; 2003 No. 30s 169sch 1

om 2007 No. 47s 13

pres s 39 ins 2014 No. 57s 11

42Unlawful carrying out of building work

(1)A person must not carry out, or undertake to carry out, building work unless the person holds a contractor’s licence of the appropriate class under this Act.

Maximum penalty—250 penalty units.

(2)However, subsection (1) does not apply to a person to the extent that the person is exempt under schedule 1A.

(3)Subject to subsection (4), a person who carries out building work in contravention of this section is not entitled to any monetary or other consideration for doing so.

(4)A person is not stopped under subsection (3) from claiming reasonable remuneration for carrying out building work, but only if the amount claimed—

(a)is not more than the amount paid by the person in supplying materials and labour for carrying out the building work; and

(b)does not include allowance for any of the following—

(i)the supply of the person’s own labour;

(ii)the making of a profit by the person for carrying out the building work;

(iii)costs incurred by the person in supplying materials and labour if, in the circumstances, the costs were not reasonably incurred; and

(c)is not more than any amount agreed to, or purportedly agreed to, as the price for carrying out the building work; and

(d)does not include any amount paid by the person that may fairly be characterised as being, in substance, an amount paid for the person’s own direct or indirect benefit.

s 42 amd 1994 No. 20s 3 sch; 1999 No. 43s 21; 2000 No. 10s 183sch 1; 2003 No. 1s 16; 2007 No. 47s 14; 2013 No. 51s 229sch 1

sub 2013 No. 58s 25

42AExemption from s 42 for up to 6 months

(1)This section applies if—

(a)on or after 1 July 2000, a class of licence (the new class of licence) is established under this Act; and

(b)immediately before the establishment of the new class of licence a person (the relevant person) was carrying on a business that included carrying out work (relevant work) within the scope of work for the new class of licence; and

(c)either of the following applied immediately before the establishment of the new class of licence—

(i)no relevant work was building work;

(ii)some relevant work was building work, but its carrying out was incidental to the carrying out of all other relevant work.

(2)The relevant person does not contravene section 42(1) in carrying out, or undertaking to carry out, relevant work unless—

(a)an application by the relevant person for the new class of licence is granted or refused; or

(b)6 months have elapsed since the new class of licence was established.

s 42A ins 2000 No. 24s 42

42BCarrying out building work without a nominee

(1)A licensee that is a company must not carry out, or undertake to carry out, building work unless the licensee has a nominee who holds a contractor’s licence or a nominee supervisor’s licence for the building work carried out, or undertaken to be carried out, under the company’s class of licence.

Maximum penalty—250 penalty units.

(2)However, a licensee does not commit an offence against subsection (1) if the period the licensee has not had a nominee is less than 28 days.

s 42B ins 2007 No. 47s 15

42CUnlawful carrying out of fire protection work

(1)An individual must not personally carry out, or personally supervise, fire protection work unless the individual—

(a)holds a fire protection occupational licence; or

(b)holds a licence, registration or authorisation under this or another Act that allows the person to personally carry out or personally supervise the work.

Maximum penalty—250 penalty units.

(2)Subsection (1) does not apply to an individual who personally carries out fire protection work if—

(a)the fire protection work is a type prescribed under a regulation; and

(b)the individual has the technical qualifications prescribed under a regulation for the type of fire protection work; and

(c)the individual carries out the fire protection work for a licensed contractor who holds a licence of the relevant class for the work.

(3)Also, subsection (1) does not apply to—

(a)an apprentice who personally carries out fire protection work in a calling that requires the apprentice to carry out the work; or

(b)a trainee who personally carries out fire protection work in a calling that requires the trainee to carry out the work; or

(c)a student who personally carries out fire protection work as part of training under the supervision of teaching staff at—

(i)a university; or

(ii)a college, school or similar institution conducted, approved or accredited by the State or the Commonwealth; or

(d)a student who, for work experience, personally carries out fire protection work as part of a pre-vocational course.

s 42C ins 2007 No. 47s 15

amd 2014 No. 57s 12

42DLicensed contractor must not engage or direct unauthorised person for fire protection work

A licensed contractor must not engage or direct an employee to carry out fire protection work unless the employee is authorised to carry out the work under this or another Act.

Maximum penalty—250 penalty units.

Note—

This provision is an executive liability provision—see section 111B.

s 42D ins 2007 No. 47s 15

amd 2013 No. 51s 229sch 1

43Licensed contractor must ensure building work is personally supervised

(1)For a licensed contractor that is a company, the company and the company’s nominee must each ensure that building work carried out by the contractor is personally supervised by—

(a)the company’s nominee; or

(b)an officer or employee of the contractor who holds one of the following licences of the relevant class authorising supervision of the building work—

(i)a nominee supervisor’s licence;

(ii)a site supervisor’s licence;

(iii)a fire protection occupational licence;

(iv)an occupational licence; or

(c)an individual who holds a contractor’s licence of the relevant class.

Maximum penalty—

(a)for an individual—200 penalty units; or

(b)for a company—1000 penalty units.

(2)For a licensed contractor that is an individual, the contractor must ensure that building work carried out by the contractor is personally supervised by—

(a)the contractor; or

(b)an employee of the contractor who holds one of the following licences of the relevant class authorising supervision of the building work—

(i)a nominee supervisor’s licence;

(ii)a site supervisor’s licence;

(iii)a fire protection occupational licence;

(iv)an occupational licence; or

(c)an individual who holds a contractor’s licence of the relevant class.

Maximum penalty—200 penalty units.

(3)In this section—

licensed contractor does not include a licensed contractor that is a construction manager.

s 43 amd 1994 No. 20 ss 15, 3 sch; 2003 No. 1s 17

sub 2007 No. 47s 16

43ALicensed contractor must ensure building work is adequately supervised

(1)For a licensed contractor that is a company, the company and the company’s nominee must each ensure that building work carried out by the contractor is adequately supervised.

Maximum penalty—

(a)for an individual—200 penalty units; or

(b)for a company—1000 penalty units.

(2)For a licensed contractor that is an individual, the contractor must ensure that building work carried out by the contractor is adequately supervised.

Maximum penalty—200 penalty units.

(3)In deciding whether building work is adequately supervised, regard must be had to the following—

(a)whether the licensed contractor has a system for the supervision of the work and, if so, how the system has been implemented;

(b)whether the building work is in accordance with the plans and specifications set out in the contract for the work;

(c)whether the work is of a standard expected of a competent holder of a contractor’s licence of the relevant class;

(d)whether, having regard to the size and complexity of the building work, the following are sufficient—

(i)the level of control, oversight and direction exercised by a person authorised to supervise the work;

(ii)the number, timing and quality of inspections carried out by a person authorised to supervise the work;

(e)whether the building work is checked on its completion and before final payment by a person authorised to supervise the work.

(4)In this section—

licensed contractor does not include a licensed contractor that is a construction manager.

s 43A ins 2007 No. 47s 16

43BConstruction manager must ensure building work is personally supervised

(1)This section applies if a construction manager provides building work services for a principal under a construction management contract for the carrying out of building work.

(2)For a construction manager that is a company, the company and the company’s nominee must each ensure that building work carried out by licensed contractors under construction management trade contracts for the principal is personally supervised by—

(a)the company’s nominee; or

(b)an officer or employee of the company who holds one of the following licences of the relevant class authorising supervision of the building work—

(i)a nominee supervisor’s licence;

(ii)a site supervisor’s licence;

(iii)a fire protection occupational licence;

(iv)an occupational licence; or

(c)an individual who holds a contractor’s licence of the relevant class.

Maximum penalty—

(a)for an individual—200 penalty units; or

(b)for a company—1000 penalty units.

(3)For a construction manager that is an individual, the construction manager must ensure that building work carried out by licensed contractors under construction management trade contracts for the principal is personally supervised by—

(a)the construction manager; or

(b)an employee of the construction manager who holds one of the following licences of the relevant class authorising supervision of the building work—

(i)a nominee supervisor’s licence;

(ii)a site supervisor’s licence;

(iii)a fire protection occupational licence;

(iv)an occupational licence; or

(c)an individual who holds a contractor’s licence of the relevant class.

Maximum penalty—200 penalty units.

s 43B ins 2007 No. 47s 16

43CConstruction manager must ensure building work is adequately supervised

(1)This section applies if a construction manager provides building work services for a principal under a construction management contract for the carrying out of building work.

(2)For a construction manager that is a company, the company and the company’s nominee must each ensure that the building work carried out by licensed contractors under construction management trade contracts for the principal is adequately supervised.

Maximum penalty—

(a)for an individual—200 penalty units; or

(b)for a company—1000 penalty units.

(3)For a construction manager that is an individual, the construction manager must ensure that the building work carried out by licensed contractors under construction management trade contracts for the principal is adequately supervised.

Maximum penalty—200 penalty units.

(4)In deciding whether building work is adequately supervised, regard must be had to the following—

(a)whether the construction manager has a system for the supervision of the work and, if so, how the system has been implemented;

(b)whether the building work is in accordance with the plans and specifications set out in the contract for the work;

(c)whether the work is of a standard expected of a competent holder of a contractor’s licence of the relevant class;

(d)whether, having regard to the size and complexity of the building work, the following are sufficient—

(i)the level of control, oversight and direction exercised by a person authorised to supervise the work;

(ii)the number, timing and quality of inspections carried out by a person authorised to supervise the work;

(e)whether the building work is checked on its completion and before final payment by a person authorised to supervise the work.

s 43C ins 2007 No. 47s 16

43DDefinitions for div 8

In this division—

carry out, in relation to owner-builder work, means—

(a)carry out the work personally; or

(b)do both of the following—

(i)engage 1 or more licensed contractors to carry out building work;

(ii)provide building work services that would usually be carried out by a licensed contractor in the course of the contractor’s business; or

(c)do a combination of (a) and (b).

Examples of an owner providing building work services—

•directing licensed contractors how to perform building work

•coordinating the scheduling of building work by licensed contractors

•arranging for payment of subcontractors

multiple dwelling means a building comprising 2 or more residential units.

owner includes a person—

(a)who—

(i)holds an estate or interest in land that entitles the person to become an owner (as defined in schedule 2) of the land; or

(ii)is the occupier of land under a lease, licence or other authority from the owner (as defined in schedule 2) of the land; and

(b)who produces, with an application for an owner-builder permit, the written agreement of the owner (as defined in schedule 2) of the land for an owner-builder permit to be issued to the person.

owner-builder course means a course prescribed by regulation.

owner-builder work means building work for a building that is to be used for residential purposes carried out on the owner’s land other than the following—

(a)building work for a multiple dwelling;

(b)fire protection work, unless the work is carried out by a person who holds a licence to carry out the work;

(c)

building work for which an occupational licence is required (the occupational work), unless the work is carried out by a person who holds a licence to carry out the work.

s 43D ins 2007 No. 47s 17

43EWhen owner-builder permit is required

An owner requires a permit (an owner-builder permit) to carry out owner-builder work on the owner’s land.

s 43E ins 2007 No. 47s 17

44Application for owner-builder permit

(1)The owner of land may apply to the commission for an owner-builder permit.

(2)The application must be—

(a)in writing; and

(b)in the form decided by the commission; and

(c)signed by—

(i)for an owner that is not a company, the owner, or if there is more than 1 owner, by all the owners; or

(ii)for a company, by all the directors of the company; and

(d)be accompanied by the fee prescribed by regulation.

(3)The application must—

(a)state the name of the owner; and

(b)if the owner is a company, state the names of the directors and the company’s ACN number; and

(c)state the location of the land; and

(d)include a description of the work to be carried out; and

(e)include other information the commission reasonably requires to decide an application.

(4)The application must be accompanied by—

(a)proof of the applicant’s identity; and

(b)if the applicant is a company, a copy of the company’s current or historical extract; and

(c)proof that the applicant is the owner of the land; and

(d)proof that an owner-builder course has been successfully completed by an individual who is—

(i)an applicant; or

(ii)a director of a company that is an applicant.

s 44 amd 1993 No. 76s 2 sch; 2003 No. 1s 18

sub 2007 No. 47s 18

amd 2013 No. 38s 14sch 1

44AConsideration of application for permit

(1)The commission must consider the application and either grant, or refuse to grant, the application.

(2)However, before deciding the application, the commission may, by written notice given to the applicant, require the applicant to give the commission, within a reasonable period of at least 14 days stated in the notice, further information or a document the commission reasonably considers is needed to decide the application.

(3)The applicant is taken to have withdrawn the application if, within the stated period, the applicant does not comply with the requirement.

(4)The commission may extend the stated period at the request of the applicant.

s 44A ins 2007 No. 47s 18

amd 2013 No. 38s 14sch 1

44BCriteria for granting application for permit

(1)The commission may grant the application only if the commission is satisfied—

(a)that the applicant, or each applicant, is the owner of the land; and

(b)that an applicant, or a director of a company that is an applicant, has successfully completed an owner-builder course; and

(c)if the applicant, or any of the applicants, is an individual, that none of the following has been issued with a permit in the 6 years preceding the application—

(i)the applicant, or any of the applicants;

(ii)a company for which an applicant who is an individual is or was a director; and

(d)if the applicant, or any of the applicants, is a company, that none of the following has been issued with a permit in the 6 years preceding the application—

(i)the applicant, or any of the applicants;

(ii)an individual who is or was a director of the company; and

(e)if the applicant, or any of the applicants, is an individual, that none of the following has had an owner-builder permit cancelled in the 3 years preceding the application—

(i)the applicant, or any of the applicants;

(ii)a company for which an applicant who is an individual is or was a director; and

(f)if the applicant, or any of the applicants, is a company, that none of the following has had an owner-builder permit cancelled in the 3 years preceding the application—

(i)the applicant, or any of the applicants;

(ii)an individual who is or was a director of the company; and

(g)none of the applicants is a banned individual; and

(h)if an applicant is a company, that none of the directors of the company is a banned individual; and

(i)each applicant is a fit and proper person to hold a permit.

(2)In deciding whether an applicant is a fit and proper person, the commission may have regard only to—

(a)tier 1 defective work carried out by the following persons, whether or not the person received a notice under section 67AH, 67AI, 67AL or 67AM stating a term of ban for the work—

(i)the applicant;

(ii)if the applicant is a company, a director of the applicant; and

(b)if the applicant, or a director of the applicant, is an enforcement debtor under an enforcement order for an infringement notice offence for this Act—whether the applicant or director has taken steps under the State Penalties Enforcement Act 1999 to discharge the amount stated in the enforcement order.

(3)However, the commission may not have regard to the matter mentioned in subsection (2)(b) if—

(a)the applicant or director has applied for cancellation of the relevant enforcement order and the application for cancellation has not been finally decided; or

(b)28 days have not elapsed since the date of the enforcement order.

(4)Despite subsection (1)(c) and (d), the commission may grant an application if—

(a)a regulation prescribes exceptional circumstances in which the commission may grant an application even though a previous permit has been issued in the 6 years preceding the application; and

(b)the commission considers the applicant is able to show the exceptional circumstances.

s 44B ins 2007 No. 47s 18

amd 2013 No. 38s 14sch 1; 2014 No. 57s 80sch 1

44CWhen permit becomes effective

A permit has effect on the day stated in the permit.

s 44C ins 2007 No. 47s 18

44DTerm of permit

A permit ends 6 years after its issue or on the earlier date stated in the permit.

s 44D ins 2007 No. 47s 18

44EConditions of permit

A permit is subject to the following conditions—

(a)the permittee must comply with this Act;

(b)the permittee may only carry out the building work as stated in the permit;

(c)if the permittee engages persons to carry out building work, the persons must be licensed contractors for the work;

(d)the permittee must not personally carry out building work for which an occupational licence is required;

(e)the permittee must not personally carry out fire protection work if the value of the work is more than the amount prescribed by regulation, or if no amount is prescribed, more than $1100;

(f)other reasonable conditions—

(i)the commission considers appropriate to give effect to this Act; and

(ii)stated in the permit.

s 44E ins 2007 No. 47s 18

amd 2013 No. 38s 14sch 1

44FForm of permit

A permit is to be in the form decided by the commission and must state the following particulars—

(a)the permittee’s name;

(b)the location of the land on which the owner-builder work is to be carried out;

(c)the real property description of the land;

(d)a description of the owner-builder work to be carried out on the land;

(e)the date of issue of the permit;

(f)the term of the permit;

(g)the permit number;

(h)the conditions of the permit.

s 44F ins 2007 No. 47s 18

amd 2013 No. 38s 14sch 1

44GCancellation or suspension of permit

The commission may suspend or cancel a permit if—

(a)the permit was obtained on the basis of incorrect information supplied to the commission, whether or not fraud was intended; or

(b)the permit was obtained by fraud or other improper means; or

(c)the permittee carries out tier 1 defective work on the land the subject of the permit; or

(d)the permittee contravenes a condition to which the permit is subject; or

(e)the commission becomes aware of the existence of facts that would have allowed the commission to refuse to issue the permit originally.

s 44G ins 2007 No. 47s 18

amd 2013 No. 38s 14sch 1

44HProcedure for cancellation or suspension

(1)The commission must, before cancelling or suspending a permit, give the permittee notice of its reasons for the proposed cancellation or suspension and allow the permittee 21 days from service of the notice to make written representations on the matter.

(2)The commission must consider any written representations made within the time allowed under subsection (1) before imposing the cancellation or suspension.

(3)A cancellation or suspension is imposed by written notice to the permittee.

(4)The notice of cancellation or suspension must comply with the QCAT Act, section 157(2).

s 44H ins 2007 No. 47s 18

amd 2009 No. 24s 1670; 2013 No. 38s 14sch 1

44IPermit issued to more than 1 person

If a permit is issued jointly to more than 1 person, a reference in this part to the permittee is a reference to each of the persons.

s 44I ins 2007 No. 47s 18

44JSurrender of permit

(1)A permittee may surrender the permit by written notice given to the commission.

(2)The permit must accompany the notice.

(3)The surrender takes effect on the later of the following—

(a)the day the notice is given;

(b)the day specified in the notice.

s 44J ins 2007 No. 47s 18

amd 2013 No. 38s 14sch 1

45Replacement of permits

(1)A permittee may apply to the commission for the replacement of a permit if it has been lost, stolen, destroyed or damaged.

(2)The commission must consider the application and either grant, or refuse to grant, the application.

(3)The commission must grant the application if the commission is satisfied the permit has been lost, stolen or destroyed, or damaged in a way to require its replacement.

(4)If the commission grants the application, the commission must, on payment of the reasonable cost of replacing the permit, issue another permit to the applicant to replace the lost, stolen, destroyed or damaged permit.

s 45 prev s 45 om 1994 No. 20s 16

pres s 45 ins 2007 No. 47s 18

amd 2013 No. 38s 14sch 1

46Notification on certificate of title

(1)If a permit is issued under this division, the commission must notify the registrar of titles of the granting of the permit.

(2)If the commission becomes aware that building work has been carried out, and that a permit should have been, but was not, obtained under this division for carrying out the building work, the commission must notify the registrar of titles of the carrying out of the building work without a permit.

(3)On receiving a notification under this section, the registrar of titles must enter the notification in the file attached to the register and it may not be removed except under this section.

(4)At the end of 7 years from entry of a notification, the registrar of titles may remove it from the file.

(5)In this section—

register means—

(a)for freehold land—the freehold land register; or

(b)for other land—the relevant register for the land.

s 46 amd 1994 No. 11s 194sch 2; 1999 No. 43s 22; 2007 No. 47s 19; 2013 No. 38s 14sch 1

47Warnings

(1)If—

(a)building work is carried out on land by a person who is not licensed to carry out that building work; and

(b)the land is offered for sale within 6 years after completion of the building work;

the vendor must, before the contract of sale is signed by the purchaser, give the prospective purchaser a notice containing details of the building work and a warning in the form required by regulation.

(2)If a notice is not given as required by this section, the vendor will be taken to have given the purchaser a contractual warranty (which operates to the exclusion of any inconsistent provision of the contract of sale) that the building work was properly carried out.

s 47 amd 1994 No. 20s 3 sch

48Cancellation or suspension of licence

The commission may suspend or cancel a licence if—

(a)the licence was obtained on the basis of incorrect information supplied to the commission, whether or not fraud was intended; or

(b)the licence was obtained by fraud or other improper means; or

(c)the licensee is convicted of an indictable offence or an offence that, if committed in Queensland, would be an indictable offence; or

(e)the licensee is a company and it ceases, for a period exceeding 28 days, to have a nominee holding a licence authorising supervision of building work of the appropriate class or classes; or

(f)the licensee is convicted of an offence against this Act; or

(h)the licensee contravened a condition to which the licence is subject under section 35 or that is imposed under section 36 on the licensee’s licence; or

(i)the licensee owes an amount to the commission and fails to comply with a demand by the commission to discharge the debt; or

(ia)the licensee fails to comply with a written request by the commission under this Act; or

(j)the commission becomes aware of the existence of facts that, having regard to section 31(1)(a) or (2)(a), or 32(1)(g), or 32AA(1)(d), or 32AB(1)(d)—

(i)would allow the commission to refuse to issue the licence if it were now being applied for by the licensee; or

(ii)would have allowed the commission to refuse to issue the licence originally.

s 48 amd 1994 No. 20s 17; 1999 No. 43s 23; 2000 No. 16s 590sch 1 pt 2; 2003 No. 1s 19; 2007 No. 47s 20; 2013 No. 38s 14sch 1

49Procedure for cancellation or suspension

(1)The commission must, before cancelling or suspending a licence, give the licensee notice of its reasons for the proposed cancellation or suspension and allow the licensee 21 days from service of the notice to make written representations on the matter.

(2)The commission must consider any written representations made within the time allowed under subsection (1) before imposing the cancellation or suspension.

(3)A cancellation or suspension is imposed by written notice to the licensee.

(4)The notice of cancellation or suspension must comply with the QCAT Act, section 157(2).

s 49 amd 2009 No. 24s 1671; 2013 No. 38s 14sch 1

49AImmediate suspension of licence

(1)The commission may suspend a licensee’s licence without allowing the licensee time to make written representations before the suspension takes effect if the commission believes, on reasonable grounds, there is a real likelihood that serious financial loss or other serious harm will happen to any of the following if the licence is not immediately suspended—

(a)other licensees;

(b)the employees of other licensees;

(c)consumers;

(d)suppliers of building materials or services.

(2)The suspension under subsection (1) is imposed by written notice given to the licensee that complies with the QCAT Act, section 157(2) and—

(a)states that licensee may make written representations for a lifting of the suspension; and

(b)briefly explains how the suspension could lapse under subsection (3).

(3)The suspension under subsection (1) lapses if—

(a)the commission does not, within 10 days after the licensee is given notice of the suspension, give the licensee notice under section 49(1) of the commission’s reasons for a proposed cancellation or suspension of the licence under section 48 (a section 49 notice); or

(b)the commission, within 10 days after the licensee is given notice of the suspension, gives the licensee a section 49 notice, but the licence is not suspended or cancelled under section 48 within 3 months, or a longer period decided under subsections (4) and (5), after the section 49 notice is given; or

(c)the commission suspends or cancels the licence under section 48.

(4)The commission may extend the period of 3 months mentioned in subsection (3)(b), but only if it appears to the commission that, in the circumstances, it is in the interests of the licensee to do so.

(5)The period may be extended more than once, but whenever it is extended, it must not be extended for more than 1 month.

s 49A ins 1994 No. 20s 18

sub 1999 No. 43s 24

amd 2009 No. 24s 1672; 2013 No. 38s 14sch 1

49BSuspension or cancellation for failure to comply with tribunal’s orders and directions

(1)The tribunal may, in a proceeding to which a licensee is a party, order that the licensee’s licence be suspended or cancelled if the licensee fails to comply with an order or direction of the tribunal within the time allowed by the tribunal.

(2)Before ordering that a licence be suspended or cancelled, the tribunal must give the licensee a reasonable opportunity to show cause why it should not be cancelled or suspended.

(3)An order under this section operates, of its own force, to suspend or cancel the licence if the licensee fails to comply with the tribunal’s order or direction within the time allowed by the tribunal.

s 49B ins 2003 No. 30s 169sch 1

amd 2007 No. 47s 21; 2014 No. 57s 13

50Surrender of licence

A licensee may, with the consent of the commission, surrender the licence.

s 50 amd 2013 No. 38s 14sch 1

div hdg ins 1999 No. 43 s 25

sub 2003 No. 1 s 20

amd 2014 No. 57 s 80 sch 1

50AApproved audit program

(1)The commissioner may approve a program (an approved audit program) under which the commission may audit licensees for one of the following purposes—

(a)to find out if they continue to satisfy the relevant financial requirements stated in the board’s policies;

(b)to find out if they have been complying with part 4A, part 5 or schedule 1B.

(2)An approved audit program must state the following—

(a)the purpose of the program;

(b)when the program starts;

(c)the period over which the program is to be carried out;

(d)objective criteria for selecting licensees who are to be the subject of audit;

(e)if the licensees to be audited are to be selected from licensees holding licences of a particular class, a description of the class.

s 50A ins 1999 No. 43s 25

amd 2003 No. 1s 21; 2007 No. 47s 22; 2013 No. 38s 14sch 1; 2014 No. 57s 14

50CSupply of financial records and other documents under approved audit program or for other reason

(1)This section applies to a licensee if—

(a)the licensee is selected to be audited under an approved audit program; or

(b)the commission is satisfied, because of information received by the commission, there are reasonable grounds for concern that—

(i)the licensee does not satisfy the relevant financial requirements stated in the board’s policies; or

(ii)the licensee is not, or has not been, complying with part 4A, part 5 or schedule 1B.

(2)The commission may give a written notice to the licensee requiring the licensee to give the commission copies of, or access to—

(a)the financial records described in the notice; or

(b)the documents described in the notice that relate to the licensee’s obligations under part 4A, part 5 or schedule 1B.

(3)The written notice may describe only—

(a)the financial records of the licensee the commission reasonably requires for deciding whether the licensee satisfies the relevant financial requirements stated in the board’s policies; or

(b)the documents the commission reasonably requires for deciding whether the licensee is, or has been, complying with part 4A, part 5 or schedule 1B.

(4)The licensee must comply with the written notice within 21 days after the licensee receives the written notice, unless the licensee has a reasonable excuse.

Maximum penalty—100 penalty units.

(4A)It is not a reasonable excuse to fail to comply with the written notice that complying with the notice might tend to incriminate the person.

(5)Also, if the licensee does not comply with the written notice within 21 days after the licensee receives it, the licensee is taken, for section 48(h), to have contravened a condition imposed under section 36 on the licensee’s licence.

s 50C ins 1999 No. 43s 25

amd 2003 No. 1s 22; 2007 No. 47s 23; 2013 No. 38s 14sch 1; 2014 No. 57s 16

50DPerson must not pretend to be a licensee

(1)A person must not pretend to be a licensee.

Maximum penalty—250 penalty units.

(2)Subsection (1) does not apply if the person makes use of another licensee’s licence to pretend to be a licensee.

s 50D ins 2007 No. 47s 24

51Improper use of licence card, certificate, number or PIN

(1)A licensee must not allow another person to make use of the licensee’s licence if the licensee knows, or ought reasonably to know, that the other person intends to make use of the licence—

(a)if the other person is not also a licensee—to pretend to be a licensee; or

(b)if the other person is also a licensee—to pretend to be the holder of a licence authorising the doing of something the other person is not authorised to do.

Maximum penalty—250 penalty units.

(2)A person who is not a licensee must not make use of a licensee’s licence to pretend to be a licensee.

Maximum penalty—250 penalty units.

(3)A licensee (the first licensee) must not make use of another licensee’s licence to pretend to be the holder of a licence authorising the doing of something the first licensee is not authorised to do.

Maximum penalty—250 penalty units.

(4)In this section—

make use of, a licensee’s licence, means make use of the number of the licensee’s licence or the licensee’s licence card, licence certificate or PIN.

s 51 sub 1999 No. 43s 26

amd 2000 No. 20s 29sch 3

sub 2007 No. 47s 24

51AOther offences relating to unlawful carrying out of building work

(1)A licensed contractor must not help another person to carry out building work if the licensed contractor knows, or ought reasonably to know, that in carrying out the building work the other person is committing an offence against section 42.

Maximum penalty—250 penalty units.

(2)A licensed contractor must not carry out, or undertake to carry out, building work using a name, number or PIN other than the licensed contractor’s name, number or PIN unless the contractor has a reasonable excuse.

Maximum penalty—250 penalty units.

s 51A ins 1999 No. 43s 26

amd 2000 No. 20s 29sch 3; 2007 No. 47s 25

51BLicensed contractor must not contract with unlicensed person

(1)This section applies to building work for which a person must hold a contractor’s licence under this Act.

Note—

A person mentioned in schedule 1A is not required to hold a contractor’s licence in the circumstances stated in the schedule.

(2)A licensed contractor must not contract with a person for the person to carry out the building work unless the person holds a contractor’s licence of the appropriate class under this Act.

Maximum penalty—

(a)for a first offence—80 penalty units; and

(b)for a second offence—120 penalty units; and

(c)for a third or subsequent offence—160 penalty units.

(3)In a proceeding taken against a licensed contractor for an offence against this section it is a defence for the contractor to prove the contractor took all reasonable action to ensure compliance with this section.

(4)Subsection (3) does not limit the application of the Criminal Code, section 23 or 24.

s 51B ins 2003 No. 1s 23

amd 2007 No. 47s 26; 2014 No. 57s 17

52Signs to be exhibited

(1)A licensed contractor (not being a subcontractor) must exhibit at a prominent position on a building site under the contractor’s control a sign conforming with the regulations showing the name under which the contractor is licensed under this Act and the number of the contractor’s licence.

Maximum penalty—20 penalty units.

(2)A person who carries out building work under an owner-builder permit must exhibit at a prominent position on a building site under that person’s control a sign conforming with the regulations showing the number of the permit.

Maximum penalty—20 penalty units.

53Return of licence

(1)A licensee (or former licensee) whose licence is suspended or cancelled must, within 14 days of receiving notice of the suspension or cancellation, return the licence and, if the commission has issued a licence certificate, the licence certificate, to the commission.

(2)A licensee must, within 14 days of receiving notice of the imposition, variation or revocation of a condition of the licence return the licence and, if the commission has issued a licence certificate, the licence certificate, to the commission for endorsement.

(3)A person who fails, without reasonable excuse, to comply with a requirement of this section commits an offence.

Maximum penalty—80 penalty units.

s 53 amd 2013 No. 38s 14sch 1

53ASatisfying financial requirements at renewal

(1)The commission must not renew a contractor’s licence if the commission is not given information, in a form approved by the board, and within the time allowed under a regulation, about the contractor’s continued satisfaction of the relevant financial requirements stated in the board’s policies.

(2)The form approved by the board may require some or all of the information to be given by a person suitably qualified and experienced in accountancy.

(3)If the contractor does not give the commission the information mentioned in subsection (1), the commission may, by written notice given to the licensee, suspend the licence.

(4)A suspension imposed under this section ends when the commission is given the information.

(5)If a licence has remained in suspension under this section for more than 3 months, the commission may, by notice to the licensee, cancel the licence.

s 53A ins 1999 No. 43s 27

amd 2013 No. 38s 14sch 1

53BFalse or misleading documents about financial requirements

(1)A person must not give a document or information to the commission about a contractor’s satisfaction of financial requirements stated in the board’s policies if—

(a)the person knows—

(i)the document contains information that is false or misleading; or

(ii)the information is false or misleading; or

(b)the document contains information that is false or misleading or the information is false or misleading and the person did not take reasonable steps to make sure that the information was not false or misleading.

Maximum penalty—100 penalty units or 2 years imprisonment.

(2)Subsection (1)(a) does not apply to a person who, when giving the document—

(a)informs the commission, to the best of the person’s ability, how it is false or misleading; and

(b)gives the correct information to the commission if the person has, or can reasonably obtain, the correct information.

(3)A complaint against a person for an offence against subsection (1)(a) is sufficient if it states the document or information was false or misleading to the person’s knowledge.

s 53B ins 1999 No. 43s 27

amd 2007 No. 47s 27; 2013 No. 38s 14sch 1

53CAdvertising by unlicensed person

(1)A person who does not hold a contractor’s licence must not publish an advertisement that the person is available to carry out building work unless the advertisement complies with this section.

(2)The advertisement must state the value of the work the person is entitled to carry out without a licence.

Maximum penalty—100 penalty units.

(3)A regulation may prescribe the following for an advertisement under this section—

(a)the way the advertisement is to be presented;

(b)the words to be included in the advertisement.

(4)In this section—

building work includes building work of any value, despite any regulation excluding building work of a stated value from the definition building work for this Act.

s 53C ins 2007 No. 47s 28

54Advertisements

A licensee who publishes or causes to be published any advertisement in connection with the licensee’s business must ensure that the advertisement—

(a)contains the name under which the licensee is licensed; and

(b)states that the licensee is licensed under this Act and the number of the licensee’s licence; and

(c)conforms with any other requirements imposed by regulation.

Maximum penalty—35 penalty units.

55Notification of company’s nominee

If a company that holds a licence—

(a)ceases to have a nominee; or

(b)changes its nominee;

the company must, within 14 days, give notice containing the information required by regulation to the commission.

Maximum penalty—20 penalty units.

s 55 amd 2003 No. 1s 24; 2013 No. 38s 14sch 1

56Partnerships

(1)A licensed contractor may carry on business under the licence in partnership with an unlicensed person subject to the following conditions—

(a)no contract to carry out building work may be entered into, and no offer or tender to carry out building work may be made, on behalf of the partnership except by the licensed contractor;

(b)any such contract offer or tender must be signed by the licensed contractor and have endorsed on it the names of the other members of the partnership;

(c)any advertisement published in relation to the business carried on, or to be carried on, under the licence must state the name under which the licensed contractor is licensed and conform with any requirements imposed by regulation;

(d)the unlicensed person must not be—

(i)an excluded individual; or

(ii)a permanently excluded individual; or

(iii)a convicted company officer; or

(iv)a banned individual; or

(v)a disqualified individual; or

(vi)an excluded company; or

(vii)a company for which a permanently excluded individual is a director, secretary, influential person or nominee; or

(viii)a company for which a convicted company officer is a director, secretary, influential person or nominee; or

(ix)a company for which a banned individual is a director, secretary, influential person or nominee; or

(x)a company for which a disqualified individual is a director, secretary, influential person or nominee.

(2)If a condition imposed by subsection (1) is contravened, each member of the partnership commits an offence.

Maximum penalty—

(a)for subsection (1)(a) to (c)—80 penalty units; or

(b)for subsection (1)(d)—200 penalty units.

s 56 amd 1992 No. 36s 2sch 1; 2003 No. 1s 25; 2007 No. 47s 29

56ACommission may request photographs for licence

(1)Subsection (2) applies to a licensee who is an individual.

(2)The commission may, at any time by written notice, request the licensee to give the commission 2 passport-size photographs of the applicant that are—

(a)recent photographs of the licensee; and

(b)certified in the way prescribed by regulation; and

(c)suitable for inclusion in the licensee’s licence.

(3)The licensee must provide the photographs within 28 days of receiving the request.

s 56A prev s 56A ins 1994 No. 20s 19

om 2000 No. 9s 104sch 1

pres s 56A ins 2007 No. 47s 30

amd 2013 No. 38s 14sch 1

pt hdg ins 1999 No. 43s 28

amd 2014 No. 57s 18

div hdg ins 1999 No. 43s 28

56ABOperation of pt 3A

This part has effect despite anything in part 3, but does not apply to—

(a)a site supervisor’s licence; or

(b)a fire protection occupational licence.

s 56AB ins 1999 No. 43s 28

amd 2007 No. 47s 31

56ACExcluded individuals and excluded companies

(1)This section applies to an individual if—

(a)the individual takes advantage of the laws of bankruptcy or becomes bankrupt (relevant bankruptcy event); and

(b)3 years have not elapsed since the relevant bankruptcy event happened.

(2)This section also applies to an individual if—

(a)a construction company, for the benefit of a creditor—

(i)has a provisional liquidator, liquidator, administrator or controller appointed; or

(ii)is wound up, or is ordered to be wound up; and

(b)3 years have not elapsed since the event mentioned in paragraph (a)(i) or (ii) (relevant company event) happened; and

(c)the individual—

(i)was, when the relevant company event happened, a director or secretary of, or an influential person for, the construction company; or

(ii)was, within the period of 1 year immediately before the relevant company event happened, a director or secretary of, or an influential person for, the construction company.

(3)If this section applies to an individual because of subsection (1), the individual is an excluded individual for the relevant bankruptcy event.

(4)If this section applies to an individual because of subsection (2), the individual is an excluded individual for the relevant company event.

(5)An excluded individual for a relevant event does not also become an excluded individual for another relevant event if the commission is satisfied that both events are consequences flowing from what is, in substance, the one set of circumstances.

(6)A company is an excluded company if an individual who is a director or secretary of, or an influential person for, the construction company is an excluded individual for a relevant event.

(7)In this section—
construction company means a company that directly or indirectly carries out building work or building work services.

s 56AC ins 1999 No. 43s 28

amd 2014 No. 56s 60; 2014 No. 57s 19

div hdg ins 1999 No. 43s 28

56AEExclusion from licence

The commission must not grant a person a licence if the person is—

(a)an excluded individual for a relevant event; or

(b)an excluded company.

s 56AE ins 1999 No. 43s 28

amd 2003 No. 1s 28; 2013 No. 38s 14sch 1

56AFProcedure if licensee is excluded individual

(1)This section applies if the commission considers that an individual who is a licensee is an excluded individual for a relevant event.

(2)The commission must give the individual a written notice identifying the relevant event and stating the following—

(a)why the commission considers the individual is an excluded individual for the relevant event;

(b)that the individual may make a submission to the commission about the relevant event within the reply period;

(c)the circumstances, stated in subsection (3), in which the commission must cancel the individual’s licence.

(3)The commission must cancel the individual’s licence, by written notice given to the individual, if—

(a)after considering any submission about the notice made by the individual within the reply period, the commission still considers the individual is an excluded individual for a relevant event; or

(b)the individual does not make a submission about the notice within the reply period.

(4)Section 49 does not apply to a cancellation under subsection (3).

(5)In this section—
reply period, for a written notice given under subsection (2), means 28 days after the commission gives an individual the written notice.

s 56AF ins 1999 No. 43s 28

amd 2003 No. 1s 29; 2013 No. 38s 14sch 1; 2014 No. 57s 21

56AGProcedure if licensee is excluded company

(1)This section applies if the commission considers that a company that is a licensee is an excluded company.

(2)The commission must give the company a written notice stating the following—

(a)particulars identifying the individual (the relevant individual) who is a director or secretary of, or an influential person for, the company and who is an excluded individual for a relevant event;

(b)particulars identifying the relevant event;

(c)within 28 days after the commission gives the company the written notice, the relevant individual must stop being a director, secretary or influential person;

(d)the circumstances, stated in subsections (3), (4) and (5), in which the commission must cancel the company’s licence.

(3)The commission must cancel the company’s licence by written notice given to the company if, within the 28 days mentioned in subsection (2)(c), the relevant individual does not stop being a director or secretary of, or an influential person for, the company.

(4)Section 49 does not apply to a cancellation under subsection (3).

s 56AG ins 1999 No. 43s 28

amd 2003 No. 1s 30; 2013 No. 38s 14sch 1; 2014 No. 57s 22

56AHReview by tribunal of commission’s opinion

(1)This section applies if the commission considers under section 56AF or 56AG (the relevant section) that a person is an excluded individual or excluded company, or that an individual is still a director or secretary of, or an influential person for, a company.

(2)If a person applies for a review of the commission’s decision, the application for review does not affect anything already done or in force under the relevant section, but periods of time mentioned in the relevant section are taken to stop running until the review is finished.

s 56AH ins 1999 No. 43s 28

amd 2000 No. 10s 183sch 1; 2013 No. 38s 14sch 1

pt hdg ins 2003 No. 1s 31

div hdg ins 2003 No. 1s 31

57Operation of pt 3B

This part has effect despite anything in part 3, but does not apply to—

(a)a site supervisor’s licence; or

(b)a fire protection occupational licence.

s 57 prev s 57 om 2000 No. 9s 104sch 1

pres s 57 ins 2003 No. 1s 31

amd 2007 No. 47s 33

58Meaning of permanently excluded individual

(1)A permanently excluded individual is an individual—

(a)who has twice been an excluded individual for a relevant event; and

(b)who for each relevant event has been given written notice by the commission stating—

(i)particulars identifying the relevant event; and

(ii)why the commission considers the individual is an excluded individual for the relevant event.

(2)Notice under subsection (1)(b)—

(a)must be given while the individual is an excluded individual for the relevant event to which the notice relates; and

(b)if the notice is the second or a subsequent notice the individual has been given about being an excluded individual for a relevant event—

(i)must state the effect of the individual becoming a permanently excluded individual; and

(ii)may be given at any time after an earlier notice was given.

(3)An excluded individual who is a licensee is taken to have been given notice under subsection (1)(b) if—

(a)the individual has been given notice under section 56AF(2); and

(b)for a second or subsequent notice, the notice also includes the information required under subsection (2)(b)(i).

(4)A second or subsequent notice may be given for a relevant event whether the event happened before or after another event for which the commission has already given notice under subsection (1)(b).

(5)However, subsection (1) applies only if an individual became an excluded individual for at least one of the relevant events after the commencement of this section, irrespective of when the circumstances resulting in the relevant event arose.

(6)If a second or subsequent notice does not include the information required under subsection (2)(b)(i) another notice containing the information may be given.

(7)It is declared that in deciding whether 2 relevant events as mentioned in subsection (1) have happened, a relevant event must be counted—

(a)whether the relevant event happened before or after the other relevant event; and

(b)whether or not the notices under subsection (1)(b) for the relevant events were given in the order the relevant events happened; and

(c)regardless of the length of time between the giving of the notices under subsection (1)(b) for the relevant events; and

(d)whether the relevant event happened before or after the commencement of this section, subject to subsection (5).

Example for subsection (2)(a)—

The commission gives a licensee a notice under this section for a relevant event for which the licensee is currently an excluded individual. The commission later discovers that the licensee was, before the grant of the licensee’s licence, an excluded individual for a previous relevant event. However, the licensee is not currently an excluded individual for this relevant event because 5 years have elapsed since the event happened. It may not give the licensee a notice for this event.

Example for subsection (7)(a), (b) and (d)—

The commission gives a licensee a notice under this section for a relevant event that happened after the commencement of this section. It later discovers that the licensee is an excluded individual for another relevant event that happened before the grant of the licensee’s licence and before the commencement of this section. It may give the licensee a notice for this relevant event. Also, it is the later notice, about the earlier relevant event, that must state the effect of the individual becoming a permanently excluded individual.

Examples for subsection (7)(c)—

1The commission becomes aware that a person who is an applicant for a contractor’s licence is currently an excluded individual for 2 relevant events one of which happened after the commencement of this section. The commission may give the person a notice for one of the relevant events and immediately give a notice for the other relevant event. Also, it is the later notice that must state the effect of the individual becoming a permanently excluded individual.

2A licensee becomes an excluded individual for a relevant event. The individual’s licence is cancelled under section 56AF and the individual is given notice complying with this section for the relevant event. More than 5 years later the licensee applies for and is granted a contractor’s licence. Ten years after this, the licensee becomes an excluded individual for another relevant event. The commission gives a notice complying with this section for the latest relevant event. This notice includes the information required for a second or subsequent notice under subsection (2)(b)(i) and the individual becomes a permanently excluded individual.

s 58 prev s 58 amd 1992 No. 36s 2sch 1

sub 1994 No. 20s 20

om 2000 No. 9s 104sch 1

pres s 58 ins 2003 No. 1s 31

amd 2013 No. 38s 14sch 1; 2014 No. 57s 23

div hdg ins 2003 No. 1 s 31

59Exclusion from licence

The commission must not grant a person a licence if the person is—

(a)a permanently excluded individual; or

(b)a company for which a permanently excluded individual is a director, secretary, influential person or nominee.

s 59 prev s 59 amd 1994 No. 20s 21

om 2000 No. 9s 104sch 1

pres s 59 ins 2003 No. 1s 31

amd 2013 No. 38s 14sch 1

60Permanently excluded individual not fit and proper

A permanently excluded individual is taken not to be a fit and proper person for part 3, division 2.

s 60 prev s 60 om 2000 No. 9s 104sch 1

pres s 60 ins 2003 No. 1s 31

61When individual no longer permanently excluded individual

In deciding whether an individual is, or continues to be, a permanently excluded individual, a relevant event for which the individual has been given notice under section 58(1)(b) must not be counted if the individual applies to the tribunal under section 86(1)(k) for a review of the commission’s decision under section 56AF that a person is an excluded individual, and the tribunal reverses or annuls the commission’s decision.

s 61 prev s 61 om 2000 No. 9s 104sch 1

pres s 61 ins 2003 No. 1s 31

amd 2003 No. 30s 169sch 1; 2013 No. 38s 14sch 1; 2014 No. 57s 24

pt hdg ins 2003 No. 1s 32

div hdg ins 2003 No. 1s 32

62Operation of pt 3C

This part has effect despite anything in part 3, but does not apply to—

(a)a site supervisor’s licence; or

(b)a fire protection occupational licence.

s 62 prev s 62 om 2000 No. 9s 104sch 1

pres s 62 ins 2003 No. 1s 32

amd 2007 No. 47s 34

div hdg ins 2003 No. 1s 32

63Exclusion from licence

The commission must not grant a person a licence if the person is—

(a)a convicted company officer; or

(b)a company for which a convicted company officer is a director, secretary, influential person or nominee.

s 63 prev s 63 om 2000 No. 9s 104sch 1

pres s 63 ins 2003 No. 1s 32

amd 2013 No. 38s 14sch 1

64Procedure if commission considers individual a convicted company officer

(1)This section applies if the commission considers that an individual is a convicted company officer.

(2)The commission must give the individual a written notice stating—

(a)details of the conviction the commission considers makes the individual a convicted company officer; and

(b)the effect of the individual being a convicted company officer; and

(c)an invitation to the individual to make written submissions, within a stated period, to satisfy the commission that the individual is not a convicted company officer.

(3)The stated period must be at least 28 days after the written notice is given to the individual.

(4)The commission must consider any submissions made by the individual.

s 64 prev s 64 om 2000 No. 9s 104sch 1

pres s 64 ins 2003 No. 1s 32

amd 2013 No. 38s 14sch 1

65Ending procedure without further action

(1)This section applies if, after considering submissions made by the individual, the commission is satisfied the individual is not a convicted company officer.

(2)The commission must, as soon as practicable, advise the individual in writing that no further action under this part will be taken in relation to the notice given under section 64(2).

s 65 prev s 65 om 2000 No. 9s 104sch 1

pres s 65 ins 2003 No. 1s 32

amd 2013 No. 38s 14sch 1

66Notice of cancellation and that not a fit and proper person to individual who is a licensee

(1)For an individual who is a licensee, subsection (3) applies if, after considering submissions made by the individual for the notice under section 64(2), the commission still considers that the individual is a convicted company officer.

(2)Subsection (3) also applies if there are no submissions for the notice under section 64(2).

(3)The commission must, by written notice given to the individual—

(a)inform the individual that the commission still considers the individual is a convicted company officer; and

(b)cancel the individual’s licence; and

(c)inform the individual—

(i)that the individual is taken not to be a fit and proper person for part 3, division 2; and

(ii)of the individual’s right to apply to the tribunal for a review of the commission’s decision.

Note—

An individual may have the commission’s decision reviewed by the tribunal under section 86(1)(l).

(4)An individual given notice under subsection (3) is taken not to be a fit and proper person for part 3, division 2 as stated in the notice.

(5)Section 49 does not apply to a cancellation under subsection (3).

s 66 prev s 66 amd 1992 No. 36s 2sch 1

om 2000 No. 9s 104sch 1

pres s 66 ins 2003 No. 1s 32

amd 2013 No. 38s 14sch 1

67Notice that not a fit and proper person to individual who is not a licensee

(1)For an individual who is not a licensee, subsection (3) applies if, after considering submissions made by the individual for the notice under section 64(2), the commission still considers that the individual is a convicted company officer.

(2)Subsection (3) also applies if there are no submissions for the notice under section 64(2).

(3)The commission must, by written notice given to the individual, inform the individual—

(a)that the commission still considers the individual is a convicted company officer; and

(b)that the individual is taken not to be a fit and proper person for part 3, division 2; and

(c)of the individual’s right to apply to the tribunal for a review of the commission’s decision; and

(d)how, and the period within which, the individual may apply to the tribunal for the review; and

(e)any right the individual has to have the operation of the commission’s decision stayed by the tribunal.

(4)An individual given notice under subsection (3) is taken not to be a fit and proper person for part 3, division 2 as stated in the notice.

s 67 prev s 67 om 2000 No. 9s 104sch 1

pres s 67 ins 2003 No. 1s 32

amd 2009 No. 24s 1673; 2013 No. 38s 14sch 1

67AANotice by commission to company for which a convicted company officer is a director, secretary, influential person or nominee

(1)This section applies if the commission considers that a company that is a licensee has an individual who is a convicted company officer as a director or secretary of, or an influential person or nominee for, the company.

(2)The commission must give the company a written notice stating—

(a)particulars identifying the individual (the relevant individual) the commission considers is a director or secretary of, or an influential person or nominee for, the company; and

Note—

A company may have the commission’s decision reviewed by the tribunal under section 86(1)(m).

(b)that the relevant individual must stop being a director, secretary, influential person or nominee within 28 days after the commission gives the individual the written notice; and

(c)the commission must cancel the licensee’s licence if the relevant individual does not stop being a director, secretary, influential person or nominee within the 28 days mentioned in paragraph (b).

(3)The commission must cancel the company’s licence by written notice given to the company if the relevant individual does not stop being a director, secretary, influential person or nominee within the 28 days mentioned in subsection (2)(b).

(4)Section 49 does not apply to a cancellation under subsection (3).

s 67AA ins 2003 No. 1s 32

amd 2013 No. 38s 14sch 1

pt hdg ins 2003 No. 1s 33

div 1 (ss 67AB–67AD) ins 2003 No. 1s 33

67ABMeaning of tier 1 defective work and carry out tier 1 defective work

(1)Tier 1 defective work means grossly defective building work that—

(a)falls below the standard reasonably expected of a licensed contractor for the type of building work; and

(b)either—

(i)adversely affects the structural performance of a building to the extent that a person could not reasonably be expected to use the building for the purpose for which it was, or is being, erected or constructed; or

(ii)is likely to cause the death of, or grievous bodily harm to, a person.

Example for paragraph (b)(i)—

A building is constructed and due to substandard building work all or a significant part of the building requires demolition or substantial reconstruction.

Examples for paragraph (b)(ii)—

A fire protection contractor installs a fire protection system that does not meet the requirements of the Building Code of Australia for the system. In the event of fire, the noncompliance is likely to result in the death of, or grievous bodily harm to, a person.

(2)Carry out tier 1 defective work means—

(a)carry out tier 1 defective work personally; or

(b)directly or indirectly, cause tier 1 defective work to be carried out; or

(c)provide advisory, administrative, management or supervisory services for carrying out tier 1 defective work.

div 1 (ss 67AB–67AD) ins 2003 No. 1s 33

67ACBanned individual

(1)An individual is a banned individual if the individual is given notice under this part that the individual is taken not to be a fit and proper person for part 3, division 2.

(2)The individual continues to be a banned individual for the term calculated under this part and stated in the notice.

div 1 (ss 67AB–67AD) ins 2003 No. 1s 33

67ADOperation of pt 3D

This part has effect despite anything in part 3.

div 1 (ss 67AB–67AD) ins 2003 No. 1s 33

div hdg ins 2003 No. 1s 33

67AEExclusion from licence

The commission must not grant a person a licence if the person is—

(a)a banned individual; or

(b)a company for which a banned individual is a director, secretary, influential person or nominee.

s 67AE ins 2003 No. 1s 33

amd 2013 No. 38s 14sch 1

67AFProcedure if commission considers individual has carried out tier 1 defective work

(1)This section applies if the commission considers that an individual has carried out tier 1 defective work after the commencement of this section.

(2)The commission may give the individual a written notice stating—

(a)details of the tier 1 defective work; and

(b)the effect of the individual becoming a banned individual for the tier 1 defective work; and

(c)an invitation to the individual to make written submissions, within a stated period, to satisfy the commission that—

(i)the individual did not carry out the work stated in the notice; or

(ii)the work carried out by the individual was not tier 1 defective work; or

(iii)the individual exercised reasonable diligence to ensure that the work carried out was not defective.

Example for subparagraph (iii)—

An individual carried out tier 1 defective work in relation to the footings of a house. However, the individual had reasonably relied on plans for the footings drawn by an engineer and carried out the work in accordance with the plans. It was the reliance on the plans that caused the tier 1 defective work.

(3)The stated period must be at least 28 days after the written notice is given to the individual.

(4)The commission must consider any submissions made by the individual.

s 67AF ins 2003 No. 1s 33

amd 2013 No. 38s 14sch 1

67AGEnding procedure without further action

(1)This section applies if, after considering submissions made by the individual, the commission is satisfied that—

(a)the individual did not carry out the work stated in the notice; or

(b)the work carried out by the individual was not tier 1 defective work; or

(c)the individual exercised reasonable diligence to ensure that the work carried out was not defective.

(2)The commission must, as soon as practicable, advise the individual in writing that no further action under this part will be taken in relation to the written notice given under section 67AF(2).

s 67AG ins 2003 No. 1s 33

amd 2013 No. 38s 14sch 1

67AHNotice of cancellation and that not a fit and proper person to individual who is a licensee

(1)For an individual who is a licensee, subsection (3) applies if, after considering the submissions made by the individual for the notice under section 67AF(2), the commission—

(a)still considers that—

(i)the individual carried out the work stated in the notice; and

(ii)the work carried out was tier 1 defective work; and

(b)is not satisfied that the individual exercised reasonable diligence to ensure that the work carried out was not defective.

(2)Subsection (3) also applies if there are no submissions for the notice under section 67AF(2).

(3)The commission must, by written notice given to the individual—

(a)inform the individual that the commission—

(i)still considers—

(A)that the individual carried out the work stated in the notice; and

(B)the work carried out was tier 1 defective work; and

(ii)is not satisfied that the individual exercised reasonable diligence to ensure that the work carried out was not defective; and

(b)cancel the individual’s licence; and

(c)inform the individual—

(i)that the individual is taken not to be a fit and proper person for part 3, division 2, for the term calculated under section 67AO and stated in the notice; and

(ii)of the individual’s right to apply to the tribunal for a review of the commission’s decision; and

(iii)how, and the period within which, the individual may apply to the tribunal for the review; and

(iv)any right the individual has to have the operation of the commission’s decision stayed by the tribunal.

Note—

An individual who is given notice that they are taken not to be a fit and proper person (a banned individual) for a stated term may have the commission’s decision reviewed under section 86(1)(n).

(4)An individual given notice under subsection (3) is taken not to be a fit and proper person for part 3, division 2 as stated in the notice.

(5)Section 49 does not apply to a cancellation under subsection (3).

s 67AH ins 2003 No. 1s 33

amd 2009 No. 24s 1674; 2013 No. 38s 14sch 1

67AINotice that not a fit and proper person to individual who is not a licensee

(1)For an individual who is not a licensee, subsection (3) applies if, after considering the submissions made by the individual for the notice under section 67AF(2), the commission—

(a)still considers that—

(i)the individual carried out the work stated in the notice; and

(ii)the work carried out was tier 1 defective work; and

(b)is not satisfied that the individual exercised reasonable diligence to ensure that the work carried out was not defective.

(2)Subsection (3) also applies if there are no submissions for the notice under section 67AF(2).

(3)The commission must, by written notice given to the individual, inform the individual—

(a)that the commission—

(i)still considers that—

(A)the individual carried out the work stated in the notice; and

(B)the work carried out was tier 1 defective work; and

(ii)is not satisfied that the individual exercised reasonable diligence to ensure that the work carried out was not defective; and

(b)that the individual is taken not to be a fit and proper person for part 3, division 2, for the term calculated under section 67AO and stated in the notice; and

(c)of the individual’s right to apply to the tribunal for a review of the commission’s decision; and

(d)how, and the period within which, the individual may apply to the tribunal for the review; and

(e)any right the individual has to have the operation of the commission’s decision stayed by the tribunal.

Note—

An individual who is given notice that they are taken not to be a fit and proper person (a banned individual) for a stated term may have the commission’s decision reviewed under section 86(1)(n).

(4)An individual given notice under subsection (3) is taken not to be a fit and proper person for part 3, division 2 as stated in the notice.

s 67AI ins 2003 No. 1s 33

amd 2009 No. 24s 1675; 2013 No. 38s 14sch 1

67AJNotice by commission to director, secretary, influential person or nominee about tier 1 defective work

(1)This section applies if the commission considers that a company has carried out tier 1 defective work after the commencement of this section.

(2)The commission may give an individual who was a director or secretary of, or an influential person or nominee for, the company at the time the work was carried out, a written notice stating—

(a)details of the tier 1 defective work; and

(b)the effect of the director, secretary, influential person or nominee becoming a banned individual for the tier 1 defective work; and

(c)an invitation to the director, secretary, influential person or nominee to make written submissions, within a stated period, to satisfy the commission that—

(i)the company did not carry out the work stated in the notice; or

(ii)the work carried out by the company was not tier 1 defective work; or

(iii)the director, secretary, influential person or nominee exercised reasonable diligence to ensure that the work carried out was not defective; or

(iv)the director, secretary, influential person or nominee was not in a position to influence the conduct of the company’s affairs in relation to the defective work.

(3)The stated period must be at least 28 days after the written notice is given to the director, secretary, influential person or nominee.

(4)The commission must consider any submissions made by the director, secretary, influential person or nominee.

s 67AJ ins 2003 No. 1s 33

amd 2013 No. 38s 14sch 1

67AKEnding procedure without further action

(1)This section applies if, after considering submissions made by the director, secretary, influential person or nominee, the commission is satisfied that—

(a)the company did not carry out the work stated in the notice; or

(b)the work carried out by the company was not tier 1 defective work; or

(c)the director, secretary, influential person or nominee exercised reasonable diligence to ensure that the work carried out was not defective; or

(d)the director, secretary, influential person or nominee was not in a position to influence the conduct of the company’s affairs in relation to the defective work.

(2)The commission must, as soon as practicable, advise the director, secretary, influential person or nominee in writing that no further action under this part will be taken in relation to the notice given under section 67AJ(2).

s 67AK ins 2003 No. 1s 33

amd 2013 No. 38s 14sch 1

67ALNotice of cancellation and that not a fit and proper person to director, secretary, influential person or nominee who is a licensee

(1)For a director, secretary, influential person or nominee who is a licensee, subsection (3) applies if, after considering the submissions made by the director, secretary, influential person or nominee for the notice under section 67AJ(2), the commission—

(a)still considers—

(i)that the company carried out the work stated in the notice; and

(ii)that the work carried out was tier 1 defective work; and

(b)is not satisfied—

(i)that the director, secretary, influential person or nominee was not in a position to influence the conduct of the company’s affairs in relation to the defective work; or

(ii)that the director, secretary, influential person or nominee exercised reasonable diligence to ensure that the work carried out was not defective.

(2)Subsection (3) also applies if there are no submissions for the notice under section 67AJ(2).

(3)The commission must, by written notice given to the director, secretary, influential person or nominee—

(a)inform the director, secretary, influential person or nominee that the commission—

(i)still considers—

(A)that the company carried out the work stated in the notice; and

(B)that the work carried out was tier 1 defective work; and

(ii)is not satisfied—

(A)that the director, secretary, influential person or nominee was not in a position to influence the conduct of the company’s affairs in relation to the defective work; or

(B)that the director, secretary, influential person or nominee exercised reasonable diligence to ensure that the work carried out was not defective; and

(b)cancel the director’s, secretary’s, influential person’s or nominee’s licence; and

(c)inform the director, secretary, influential person or nominee—

(i)that the director, secretary, influential person or nominee is taken not to be a fit and proper person for part 3, division 2, for the term calculated under section 67AO and stated in the notice; and

(ii)of the director’s, secretary’s, influential person’s or nominee’s right to apply to the tribunal for a review of the commission’s decision; and

(iii)how, and the period within which, the director, secretary, influential person or nominee may apply to the tribunal for the review; and

(iv)any right the director, secretary, influential person or nominee has to have the operation of the commission’s decision stayed by the tribunal.

Note—

A director, secretary, influential person or nominee who is given notice that they are taken not to be a fit and proper person (a banned individual) for a stated term may have the commission’s decision reviewed under section 86(1)(n).

(4)A director, secretary, influential person or nominee given notice under subsection (3) is taken not to be a fit and proper person for part 3, division 2 as stated in the notice.

(5)Section 49 does not apply to a cancellation under subsection (3).

s 67AL ins 2003 No. 1s 33

amd 2009 No. 24s 1676; 2013 No. 38s 14sch 1

67AMNotice that not a fit and proper person to director, secretary, influential person or nominee who is not a licensee

(1)For a director, secretary, influential person or nominee who is not a licensee, subsection (3) applies if, after considering the submissions made by the director, secretary, influential person or nominee for the notice under section 67AJ(2), the commission—

(a)still considers—

(i)that the company carried out the work stated in the notice; and

(ii)that the work carried out was tier 1 defective work; and

(b)is not satisfied—

(i)that the director, secretary, influential person or nominee was not in a position to influence the conduct of the company’s affairs in relation to the defective work; or

(ii)that the director, secretary, influential person or nominee exercised reasonable diligence to ensure that the work carried out was not defective.

Note—

A nominee who is included in this provision as a person who was a licensed nominee when the company carried out the defective work may not be licensed when the notice is given.

(2)Subsection (3) also applies if there are no submissions for the notice under section 67AJ(2).

(3)The commission must, by written notice given to the director, secretary, influential person or nominee inform the director, secretary, influential person or nominee—

(a)that the commission—

(i)still considers—

(A)that the company carried out the work stated in the notice; and

(B)that the work carried out was tier 1 defective work; and

(ii)is not satisfied—

(A)that the director, secretary, influential person or nominee was not in a position to influence the conduct of the company’s affairs in relation to the defective work; or

(B)that the director, secretary, influential person or nominee exercised reasonable diligence to ensure that the work carried out was not defective; and

(b)that the director, secretary, influential person or nominee is taken not to be a fit and proper person for part 3, division 2, for the term calculated under section 67AO and stated in the notice; and

(c)of the director’s, secretary’s, influential person’s or nominee’s right to apply to the tribunal for a review of the commission’s decision; and

(d)how, and the period within which, the director, secretary, influential person or nominee may apply to the tribunal for the review; and

(e)any right the director, secretary, influential person or nominee has to have the operation of the commission’s decision stayed by the tribunal.

Note—

A director, secretary, influential person or nominee who is given notice that they are taken not to be a fit and proper person (a banned individual) for a stated term may have the commission’s decision reviewed under section 86(1)(n).

(4)A director, secretary, influential person or nominee given notice under subsection (3) is taken not to be a fit and proper person for part 3, division 2 as stated in the notice.

s 67AM ins 2003 No. 1s 33

amd 2009 No. 24s 1677; 2013 No. 38s 14sch 1

67ANNotice by commission to company for which a banned individual is a director, secretary, influential person or nominee

(1)This section applies if the commission considers that a company that is a licensee has an individual who is a banned individual as a director or secretary of, or an influential person or nominee for, the company.

(2)The commission must give the company a written notice stating—

(a)particulars identifying the individual (the relevant individual) the commission considers is a director or secretary of, or an influential person or nominee for, the company; and

Note—

A company may have the commission’s decision reviewed under section 86(1)(o).

(b)that the relevant individual must stop being a director, secretary, influential person or nominee within 28 days after the commission gives the company the written notice; and

(c)the commission must cancel the company’s licence if the relevant individual does not stop being a director, secretary, influential person or nominee within the 28 days mentioned in paragraph (b).

(3)The commission must cancel the company’s licence by written notice given to the company if the relevant individual does not stop being a director, secretary, influential person or nominee within the 28 days mentioned in subsection (2)(b).

(4)Section 49 does not apply to a cancellation under subsection (3).

s 67AN ins 2003 No. 1s 33

amd 2013 No. 38s 14sch 1

67AOTerms of bans

(1)This section states the term for which an individual given a notice under section 67AH, 67AI, 67AL or 67AM is taken not to be a fit and proper person for part 3, division 2 (the term of ban).

(2)Only tier 1 defective work carried out after the commencement of this section may be taken into account in calculating the term of ban.

(3)The term of ban for an individual given a notice for tier 1 defective work for the first time is 3 years.

(4)The term of ban for an individual given a notice for tier 1 defective work a second time or subsequent time is the life of the individual.

(5)A notice may be given to an individual a second time or subsequent time under section 67AH, 67AI, 67AL or 67AM if—

(a)a notice for tier 1 defective work has been given under one of the sections stating a ban of 3 years; and

(b)the second or subsequent notice relates to tier 1 defective work carried out after the notice stating a ban of 3 years is given.

(6)It is declared that, in deciding whether a notice for tier 1 defective work has been given to an individual a second time or subsequent time, a notice given to an individual for the first time under section 67AH, 67AI, 67AL or 67AM stating a ban of 3 years must be counted whether or not the individual has served the term of the ban.

Example for subsections (5) and (6)—

An individual who is a licensee is given a notice under section 67AH for tier 1 defective work carried out by the individual. The notice informs the individual that the individual is taken not to be a fit and proper person for part 3, division 2 for 3 years. After the notice under section 67AH is given, the individual carries out other tier 1 defective work. The commission may give the individual a second notice under section 67AH for the other tier 1 defective work whether or not the 3 years have passed. Also, it is the second notice under section 67AH that informs the individual that the individual is taken not to be a fit and proper person for part 3, division 2 for the life of the individual.

(7)However, in deciding whether a notice for tier 1 defective work is given to an individual a second time or subsequent time, an earlier notice given to an individual under section 67AH, 67AI, 67AL or 67AM must not be counted if—

(a)the earlier notice was given more than 10 years before the second or subsequent notice; or

(b)the commission’s decision under the earlier notice was reversed or annulled on review by the tribunal.

(8)In this section a reference to tier 1 defective work carried out is—

(a)for an individual given notice under section 67AH(3) or 67AI(3)—a reference to tier 1 defective work carried out by the individual; or

(b)for an individual given notice under section 67AL(3) or 67AM(3)—a reference to tier 1 defective work carried out by the company for which the individual was a director, secretary, influential person or nominee.

s 67AO ins 2003 No. 1s 33

amd 2013 No. 38s 14sch 1

pt hdg ins 2003 No. 1s 34

div hdg ins 2003 No. 1s 34

67AQDefinitions for pt 3E

In this part—

accumulate—

A person accumulates a demerit point when the demerit point takes effect if it is subsequently allocated to the person.

administering authority see the State Penalties Enforcement Act 1999, schedule 2.

building contract see section 67AAA.

def building contract ins 2004 No. 6s 113sch 1

conviction, of a person for a demerit offence, includes the following in relation to the offence—

(a)a court finding the person guilty or accepting the person’s plea of guilty, whether or not a conviction is recorded;

(b)the person paying a fine under an infringement notice, in full;

(c)the person paying the first instalment of a fine under an infringement notice;

(d)the registration by the registrar of a default certificate for an infringement notice given to the person;

(e)a decision of the commission to take disciplinary action against the person if the disciplinary action has taken effect under section 74G.

def conviction amd 2007 No. 47s 35; 2009 No. 24s 1679; 2014 No. 57s 26

default certificate see the State Penalties Enforcement Act 1999, schedule 2.

demerit matter means—

(a)a conviction for a demerit offence; or

(b)an unsatisfied judgment debt.

demerit offence see section 67AR.

demerit points means demerit points allocated by the commission under this part for a demerit matter.

def demerit points amd 2013 No. 38s 14sch 1

disqualified individual see section 67AU.

infringement notice see the State Penalties Enforcement Act 1999, schedule 2.

judgment debt see section 67AS.

period of 3 years, in relation to the accumulation of demerit points, means a period of 3 years or less.

registrar see the State Penalties Enforcement Act 1999, schedule 2.

SPER see the State Penalties Enforcement Act 1999, schedule 2.

unsatisfied, in relation to a judgment debt, see section 67AT.

s 67AQ ins 2003 No. 1s 34

67ARMeaning of demerit offence

A demerit offence is—

(a)an offence against a provision prescribed by regulation; or

(b)a contravention of a requirement imposed under this Act and prescribed by regulation.

s 67AR ins 2003 No. 1s 34

amd 2004 No. 6s 113sch 1; 2007 No. 47s 36

sub 2014 No. 57s 27

67ASMeaning of judgment debt

(1)A judgment debt is the amount, for which judgment has been entered in a court of competent jurisdiction, owing by a building contractor—

(a)in relation to a building contract or a domestic building contract; or

(b)for goods or services supplied for—

(i)building work to be carried out under a building contract; or

(ii)domestic building work to be carried out under a domestic building contract; or

(c)to the commission for a claim under the statutory insurance scheme.

(2)Judgment must be entered after the commencement of this section.

(3)However, the circumstances giving rise to the judgment debt may have arisen before the commencement of this section.

s 67AS ins 2003 No. 1s 34

amd 2013 No. 38s 14sch 1

67ATMeaning of unsatisfied judgment debt

(1)A judgment debt is unsatisfied if it has not been paid in full within—

(a)28 days after judgment is entered; or

(b)if a longer period is allowed by the court for payment—the longer period.

(2)A judgment debt is not unsatisfied if the judgment creditor has accepted and been paid an amount in full and final settlement within the relevant period mentioned in subsection (1).

s 67AT ins 2003 No. 1s 34

67AUDisqualified individual

(1)An individual is a disqualified individual if the individual is given notice under this part that the individual is taken not to be a fit and proper person for part 3, division 2.

(2)The individual continues to be a disqualified individual for the term calculated under this part and stated in the notice.

s 67AU ins 2003 No. 1s 34

67AVOperation of pt 3E

This part has effect despite anything in part 3, but does not apply to—

(a)a site supervisor’s licence; or

(b)a fire protection occupational licence.

s 67AV ins 2003 No. 1s 34

amd 2007 No. 47s 37

div hdg ins 2003 No. 1s 34

67AWDemerit points for demerit matters

(1)This section applies to a person who—

(a)has a conviction for a demerit offence; or

(b)is a judgment debtor for an unsatisfied judgment debt.

(2)The commission must allocate demerit points under this part to the person as follows—

(a)for a conviction for a demerit offence—the number of points allocated to the offence under a regulation;

(b)for an unsatisfied judgment debt—10 points.

(3)This section is subject to section 67AZB.

s 67AW ins 2003 No. 1s 34

amd 2013 No. 38s 14sch 1; 2014 No. 57s 28

67AXWhen demerit points allocated for demerit offences

(1)The commission must allocate demerit points to a person for a conviction for a demerit offence as soon as practicable after the points take effect.

(2)Demerit points for a conviction for a demerit offence take effect—

(a)if a court finds a person guilty—on the day after the last day on which the person may appeal the finding; or

(b)if a court accepts a person’s plea of guilty—on the day the plea is accepted; or

(c)if a person pays the fine under an infringement notice, in full—on the day the fine is paid; or

(d)if a person applies to the administering authority to pay the fine under an infringement notice, by instalments—on the day the administering authority receives the first instalment; or

(e)if the administering authority gives a default certificate to SPER for registration—on the day the default certificate is registered; or

(f)if the commission decides to take disciplinary action against the person—on the day the disciplinary action takes effect under section 74G.

(3)However, if a conviction for a demerit offence is appealed, demerit points for the conviction must not be allocated until the appeal is finally dealt with or withdrawn.

(4)Also, if a conviction for a demerit offence is appealed and after the appeal there is no conviction, demerit points stop having effect.

(5)In this section—

appeal includes a review of a decision of the commission by the tribunal under section 86.

s 67AX ins 2003 No. 1s 34

amd 2007 No. 47s 38; 2013 No. 38s 14sch 1; 2014 No. 57s 29

67AYWhen demerit points allocated for unsatisfied judgment debts

(1)The commission must allocate demerit points to a person for an unsatisfied judgment debt as soon as practicable after the points take effect.

(2)Demerit points take effect when the judgment debt becomes an unsatisfied judgment debt.

(3)However, if a decision relating to a judgment is appealed or an application is made to set the judgment aside, demerit points must not be allocated for the unsatisfied judgment debt until the appeal or application is finally dealt with or withdrawn.

(4)Also, if a decision relating to a judgment is appealed or an application is made to set the judgment aside and after the appeal or application there is no unsatisfied judgment debt, demerit points stop having effect.

s 67AY ins 2003 No.1 s 34

amd 2013 No. 38s 14sch 1

67AZJudgment debtor must notify unsatisfied judgment debt

(1)A judgment debtor for a judgment debt must notify the commission within 14 days after the judgment debt becomes an unsatisfied judgment debt.

Maximum penalty—40 penalty units.

(2)Notification under subsection (1) must include the following—

(a)particulars of the debt;

(b)the name and address of the judgment debtor;

(c)the name and address of the judgment creditor;

(d)the date judgment was entered and the amount for which it was entered;

(e)the court in which it was entered;

(f)the number of the proceeding for which it was entered sufficient to allow a search of the court registry;

(g)details of any payments made to reduce the judgment debt.

s 67AZ ins 2003 No. 1s 34

amd 2013 No. 38s 14sch 1

67AZA Commission must notify person about demerit points

(1)Subsection (2) applies if the commission allocates demerit points to a person.

(2)The commission must, as soon as practicable after the demerit points are allocated, notify the person in writing of—

(a)the demerit points allocated; and

(b)the demerit matters for which they were allocated; and

(c)the date the points took effect.

s 67AZA ins 2003 No. 1s 34

amd 2013 No. 38s 14sch 1

67AZB Limit on demerit points from single audit

(1)This section applies if a licensee is convicted of demerit offences discovered by the commission as a result of a written notice given to a licensee under section 50C(2).

(2)The maximum demerit points that may be allocated to the licensee for the convictions for the demerit offences is 20.

(3)Nothing in this section prevents more demerit points being allocated to the licensee for convictions for demerit offences discovered by the commission as a result of a later written notice given under section 50C(2).

(4)However, more demerit points must not be allocated—

(a)if the earlier notice and the later notice relate to—

(i)the same audit under an approved audit program; or

(ii)information received by the commission from the same source; or

(b)for convictions for demerit offences discovered by the commission as a result of a later notice if the offences—

(i)were committed before an earlier notice; and

(ii)demerit offences were discovered as a result of the earlier notice and resulted in the allocation of demerit points.

s 67AZB ins 2003 No. 1s 34

amd 2013 No. 38s 14sch 1; 2014 No. 57s 30

div hdg ins 2003 No. 1s 34

67AZC Exclusion from licence

The commission must not grant a person a licence if the person is—

(a)a disqualified individual; or

(b)a company for which a disqualified individual is a director, secretary, influential person or nominee.

s 67AZC ins 2003 No. 1s 34

amd 2013 No. 38s 14sch 1

67AZD Procedure if commission considers individual has accumulated 30 demerit points

(1)This section applies if the commission considers that an individual has accumulated 30 demerit points in a period of 3 years.

(2)The commission must give the individual a written notice stating—

(a)details of the demerit matters for which the demerit points have accumulated and the dates the points took effect; and

(b)the effect of the individual becoming a disqualified individual for accumulating 30 demerit points in a period of 3 years; and

(c)an invitation to the individual to make written submissions, within a stated period, to satisfy the commission that the individual has not accumulated 30 demerit points in a period of 3 years.

(3)The stated period must be at least 28 days after the written notice is given to the individual.

(4)The commission must consider any submissions made by the individual.

(5)In deciding whether an individual has accumulated 30 demerit points in a period of 3 years, demerit points must not be counted for an unsatisfied judgment debt paid in full before the end of the stated period.

s 67AZD ins 2003 No. 1s 34

amd 2013 No. 38s 14sch 1

67AZE Ending procedure without further action

(1)This section applies if, after considering submissions made by the individual, the commission is satisfied the individual has not accumulated 30 demerit points in a period of 3 years.

(2)The commission must, as soon as practicable, advise the individual in writing that no further action under this part will be taken in relation to the notice given under section 67AZD(2).

s 67AZE ins 2003 No. 1s 34

amd 2013 No. 38s 14sch 1

67AZF Notice of cancellation and that not a fit and proper person to individual who is a licensee

(1)For an individual who is a licensee, subsection (3) applies if, after considering submissions made by the individual for the notice under section 67AZD(2), the commission still considers that the individual has accumulated 30 demerit points in a period of 3 years.

(2)Subsection (3) also applies if there are no submissions for the notice under section 67AZD(2).

(3)The commission must, by written notice given to the individual—

(a)inform the individual that the commission still considers the individual has accumulated 30 demerit points in a period of 3 years; and

(b)cancel the individual’s licence; and

(c)inform the individual—

(i)that the individual is taken not to be a fit and proper person for part 3, division 2 for the term calculated under section 67AZM and stated in the notice; and

(ii)of the individual’s right to apply to the tribunal for a review of the commission’s decision; and

(iii)how, and the period within which, the individual may apply to the tribunal for the review; and

(iv)any right the individual has to have the operation of the commission’s decision stayed by the tribunal.

Note—

An individual who is given notice that they are taken not to be a fit and proper person (a disqualified individual) for a stated term may have the commission’s decision reviewed under section 86(1)(p).

(4)An individual given notice under subsection (3) is taken not to be a fit and proper person for part 3, division 2 as stated in the notice.

(5)Section 49 does not apply to a cancellation under subsection (3).

s 67AZF ins 2003 No. 1s 34

amd 2009 No. 24s 1680; 2013 No. 38s 14sch 1

67AZH Notice by commission to director, secretary, influential person or nominee about demerit points

(1)This section applies if the commission considers that a company has accumulated 30 demerit points in a period of 3 years.

(2)The commission may give an individual who was a director or secretary of, or an influential person or nominee for, the company at the times the 30 demerit points were accumulated, a written notice stating—

(a)details of the demerit matters for which the demerit points have accumulated and the dates the points took effect; and

(b)the effect of the director, secretary, influential person or nominee becoming a disqualified individual because the company has accumulated 30 demerit points in a period of 3 years; and

(c)an invitation to the director, secretary, influential person or nominee to make written submissions, within a stated period, to satisfy the commission that—

(i)the company has not accumulated 30 demerit points in a period of 3 years; or

(ii)the director, secretary, influential person or nominee exercised reasonable diligence to ensure that some or all of the matters for which the demerit points accumulated did not happen; or

(iii)the director, secretary, influential person or nominee was not in a position to influence the conduct of the company’s affairs in relation to some or all of the matters for which the demerit points accumulated.

(3)The stated period must be at least 28 days after the written notice is given to the director, secretary, influential person or nominee.

(4)The commission must consider any submissions made by the director, secretary, influential person or nominee.

(5)In deciding whether a company has accumulated 30 demerit points in a period of 3 years, demerit points must not be counted for an unsatisfied judgment debt paid in full before the end of the stated period.

s 67AZH ins 2003 No. 1s 34

amd 2013 No. 38s 14sch 1

67AZI Ending procedure without further action

(1)This section applies if, after considering submissions made by the director, secretary, influential person or nominee, the commission is satisfied that—

(a)the company has not accumulated 30 demerit points in a period of 3 years; or

(b)the director, secretary, influential person or nominee exercised reasonable diligence to ensure that some or all of the demerit matters for which the demerit points accumulated did not happen; or

(c)the director, secretary, influential person or nominee was not in a position to influence the conduct of the company’s affairs in relation to some or all of the demerit matters for which the demerit points accumulated.

(2)The commission must, as soon as practicable, advise the director, secretary, influential person or nominee in writing that no further action under this part will be taken in relation to the notice given under section 67AZH(2).

(3)However, subsection (2) does not apply if at least 30 demerit points remain after taking into account the demerit matters mentioned in subsection (1)(b) and (c).

s 67AZI ins 2003 No. 1s 34

amd 2013 No. 38s 14sch 1

67AZJ Notice of cancellation and that not a fit and proper person to director, secretary, influential person or nominee who is a licensee

(1)For a director, secretary, influential person or nominee who is a licensee, subsection (3) applies if, after considering the submissions made by the director, secretary, influential person or nominee for the notice under section 67AZH(2), the commission—

(a)still considers that the company has accumulated 30 demerit points in a period of 3 years; and

(b)is not satisfied, in relation to demerit matters for which at least 30 demerit points accumulated—

(i)that the director, secretary, influential person or nominee was not in a position to influence the conduct of the company’s affairs; or

(ii)that the director, secretary, influential person or nominee exercised reasonable diligence to ensure that the demerit matters did not happen.

(2)Subsection (3) also applies if there are no submissions for the notice under section 67AZH(2).

(3)The commission must, by written notice given to the director, secretary, influential person or nominee—

(a)inform the director, secretary, influential person or nominee that the commission—

(i)still considers that the company has accumulated 30 demerit points in a period of 3 years; and

(ii)is not satisfied, in relation to demerit matters for which at least 30 demerit points accumulated—

(A)that the director, secretary, influential person or nominee was not in a position to influence the conduct of the company’s affairs; or

(B)that the director, secretary, influential person or nominee exercised reasonable diligence to ensure that the demerit matters did not happen; and

(b)cancel the director’s, secretary’s, influential person’s or nominee’s licence; and

(c)inform the director, secretary, influential person or nominee—

(i)that the director, secretary, influential person or nominee is taken not to be a fit and proper person for part 3, division 2, for the term calculated under section 67AZM and stated in the notice; and

(ii)of the director’s, secretary’s, influential person’s or nominee’s right to apply to the tribunal for a review of the commission’s decision; and

(iii)how, and the period within which, the director, secretary, influential person or nominee may apply to the tribunal for the review; and

(iv)any right the director, secretary, influential person or nominee has to have the operation of the commission’s decision stayed by the tribunal.

Note—

A director, secretary, influential person or nominee who is given notice that they are taken not to be a fit and proper person (a disqualified individual) for a stated term may have the commission’s decision reviewed under section 86(1)(p).

(4)A director, secretary, influential person or nominee given notice under subsection (3) is taken not to be a fit and proper person for part 3, division 2 as stated in the notice.

(5)Section 49 does not apply to a cancellation under subsection (3).

s 67AZJ ins 2003 No. 1s 34

amd 2009 No. 24s 1682; 2013 No. 38s 14sch 1

67AZK Notice that not a fit and proper person to director, secretary, influential person or nominee who is not a licensee

(1)For a director, secretary, influential person or nominee who is not a licensee, subsection (3) applies if, after considering the submissions made by the director, secretary, influential person or nominee for the notice under section 67AZH(2), the commission—

(a)still considers that the company has accumulated 30 demerit points in a period of 3 years; and

(b)is not satisfied, in relation to demerit matters for which at least 30 demerit points accumulated—

(i)that the director, secretary, influential person or nominee was not in a position to influence the conduct of the company’s affairs; or

(ii)that the director, secretary, influential person or nominee exercised reasonable diligence to ensure that the demerit matters did not happen.

(2)Subsection (3) also applies if there are no submissions for the notice under section 67AZH(2).

(3)The commission must, by written notice given to the director, secretary, influential person or nominee inform the director, secretary, influential person or nominee—

(a)that the commission—

(i)still considers that the company has accumulated 30 demerit points in a period of 3 years; and

(ii)is not satisfied, in relation to demerit matters for which at least 30 demerit points accumulated—

(A)that the director, secretary, influential person or nominee was not in a position to influence the conduct of the company’s affairs; or

(B)that the director, secretary, influential person or nominee exercised reasonable diligence to ensure that the demerit matters did not happen; and

(b)that the director, secretary, influential person or nominee is taken not to be a fit and proper person for part 3, division 2, for the term calculated under section 67AZM and stated in the notice; and

(c)of the director’s, secretary’s, influential person’s or nominee’s right to apply to the tribunal for a review of the commission’s decision; and

(d)how, and the period within which, the director, secretary, influential person or nominee may apply to the tribunal for the review; and

(e)any right the director, secretary, influential person or nominee has to have the operation of the commission’s decision stayed by the tribunal.

Note—

A director, secretary, influential person or nominee who is given notice that they are taken not to be a fit and proper person (a disqualified individual) for a stated term may have the commission’s decision reviewed under section 86(1)(p).

(4)A director, secretary, influential person or nominee given notice under subsection (3) is taken not to be a fit and proper person for part 3, division 2 as stated in the notice.

s 67AZK ins 2003 No. 1s 34

amd 2009 No. 24s 1683; 2013 No. 38s 14sch 1

67AZL Notice by commission to company for which a disqualified individual is a director, secretary, influential person or nominee

(1)This section applies if the commission considers that a company that is a licensee has an individual who is a disqualified individual as a director or secretary of, or an influential person or nominee for, the company.

(2)The commission must give the company a written notice stating—

(a)particulars identifying the individual (the relevant individual) the commission considers is a director or secretary of, or an influential person or nominee for, the company; and

Note—

A company may have the commission’s decision reviewed under section 86(1)(q).

(b)that the relevant individual must stop being a director, secretary, influential person or nominee within 28 days after the commission gives the individual the written notice; and

(c)the commission must cancel the licensee’s licence if the relevant individual does not stop being a director, secretary, influential person or nominee within the 28 days mentioned in paragraph (b).

(3)The commission must cancel the company’s licence by written notice given to the company if the relevant individual does not stop being a director, secretary, influential person or nominee within the 28 days mentioned in subsection (2)(b).

(4)Section 49 does not apply to a cancellation under subsection (3).

s 67AZL ins 2003 No. 1s 34

amd 2013 No. 38s 14sch 1

67AZM Terms of disqualifications

(1)This section states the term for which an individual given a notice under section 67AZF, 67AZJ or 67AZK is taken not to be a fit and proper person for part 3, division 2 (the term of disqualification).

(2)Only demerit points accumulated after the commencement of this section may be taken into account in calculating the term of disqualification.

(3)The term of disqualification for an individual given a notice for accumulating 30 demerit points in a period of 3 years for the first time is 3 years.

(4)The term of disqualification for an individual given a notice for accumulating 30 demerit points in a period of 3 years a second time or subsequent time is the life of the individual.

(5)A notice may be given to an individual a second time or subsequent time under section 67AZF, 67AZJ or 67AZK if—

(a)a notice for accumulating 30 demerit points in a period of 3 years has been given under one of the sections stating a disqualification of 3 years; and

(b)the second or subsequent notice relates to 30 demerit points accumulated in a period of 3 years after the notice stating a disqualification of 3 years is given.

(6)It is declared that, in deciding whether a notice for accumulating 30 demerit points in a period of 3 years has been given to an individual a second time or subsequent time, a notice given to an individual for the first time under section 67AZF, 67AZJ or 67AZK stating a disqualification of 3 years must be counted whether or not the individual has served the term of the disqualification.

Example for subsections (5) and (6)—

An individual who is a licensee is given a notice under section 67AZF for accumulating 30 demerit points in a period of 3 years. The notice informs the individual that the individual is taken not to be a fit and proper person for part 3, division 2 for 3 years. After the notice under section 67AZF is given, the individual accumulates a further 30 demerit points in a period of 3 years that may include part of the term of disqualification. The commission may give the individual a second notice under section 67AZF for the further 30 demerit points whether or not the term of disqualification has ended. Also, it is the second notice under section 67AZF that informs the individual that the individual is taken not to be a fit and proper person for part 3, division 2 for the life of the individual.

(7)However, in deciding whether a notice for accumulating 30 demerit points in a period of 3 years is given to an individual a second time or subsequent time, an earlier notice given to an individual under section 67AZF, 67AZJ or 67AZK must not be counted if—

(a)the earlier notice was given more than 10 years before the second or subsequent notice; or

(b)the commission’s decision under the earlier notice was reversed or annulled on review by the tribunal.

(8)In this section a reference to accumulating 30 demerit points in a period of 3 years is—

(a)for an individual given notice under section 67AZF(3)—a reference to the individual accumulating 30 demerit points in a period of 3 years; or

(b)for an individual given notice under section 67AZJ(3) or 67AZK(3)—a reference to the company for which the individual was a director, secretary, influential person or nominee accumulating 30 demerit points in a period of 3 years.

s 67AZM ins 2003 No. 1s 34

amd 2013 No. 38s 14sch 1; 2014 No. 57s 32

pt hdg prev pt 4 hdg om 2000 No. 9s 104sch 1

pres pt 4 hdg ins 2014 No. 57s 33

67AZNDomestic building contracts

(1)Domestic building contracts are regulated under schedule 1B.

(2)The provisions of schedule 1B apply to domestic building contracts and the parties to those contracts.

s 67AZN ins 2014 No. 57s 33

pt hdg ins 1999 No. 43s 29

div hdg ins 1999 No. 43s 29

67ADefinitions for pt 4A

In this part—

approved security provider means a financial institution that is an approved security provider under the Financial Accountability Act 2009.

def approved security provider amd 2009 No. 9s 136sch 1

building contract see section 67AAA.

def building contract sub 2004 No. 6s 113sch 1

carry out building work means—

(a)carry out building work personally; or

(b)directly or indirectly, cause building work to be carried out; or

(c)provide advisory, administrative, management or supervisory services for carrying out building work.

commercial building contract means a building contract that is not a construction management trade contract or a subcontract.

construction management trade contract means a building contract described in section 67B.

contracted party, for a building contract, means the party to the contract who is to carry out the building work the subject of the contract.

contracting party, for a building contract, means the party to the contract for whom the building work the subject of the contract is to be carried out.

contract price, for a building contract, means the amount payable under the contract for carrying out the building work the subject of the contract, including, if the contract has been the subject of a variation, the contract as varied.

payment claim see the Building and Construction Industry Payments Act 2004, schedule 2.

def payment claim ins 2004 No. 6s 113sch 1

principal means a person who is the contracting party for a building contract and who—

(a)is not a building contractor; or

(b)is a building contractor, but did not enter into the building contract in the course of carrying on business as a building contractor.

progress payment see the Building and Construction Industry Payments Act 2004, schedule 2.

def progress payment sub 2004 No. 6s 113sch 1

retention amount, for a building contract, means an amount described in section 67C.

security, for a building contract, means something—

(a)given to, or for the direct or indirect benefit of, the contracting party for the contract by or for the contracted party for the contract; and

(b)intended to secure, wholly or partly, the performance of the contract; and

(c)in the form of either, or a combination of both, of the following—

(i)an amount, other than an amount held as a retention amount for the contract;

(ii)1 or more valuable instruments, whether or not exchanged for, or held instead of, a retention amount for the contract.

subcontract means a building contract described in section 67D.

valuable instrument means any of the following—

(a)a banker’s undertaking;

(b)a bond;

(c)inscribed stock;

(d)a guarantee policy;

(e)an interest bearing deposit.

variation, of a building contract, means an addition to, or an omission from, the building work the subject of the contract.

written form ...

def written form om 2004 No. 6s 113sch 1

s 67A ins 1999 No. 43s 29

67AAA Meaning of building contract

(1)For this part, a building contract means a contract or other arrangement for carrying out building work in Queensland but does not include—

(a)a domestic building contract; or

(b)a contract exclusively for construction work that is not building work.

(2)In this section—

construction work see the Building and Construction Industry Payments Act 2004, section 10.

s 67AAA ins 2004 No. 6s 113sch 1 (amd 2005 No. 33s 13)

67BMeaning of construction management trade contract

(1)A building contract is a construction management trade contract if—

(a)the contracting party for the building contract is a principal; and

(b)the contracted party for the building contract is the holder of a contractor’s licence; and

(c)the building work the subject of the building contract is part of a wider project of building work (the project) involving the principal in entering into 1 or more other building contracts, also as a principal, for the carrying out of other building work that is also part of the project; and

(d)the contracted party is not the construction manager for the project.

(2)For deciding whether a principal has entered into a building contract, it does not matter if the building contract was entered into on behalf of the principal, including by a construction manager.

s 67B ins 1999 No. 43s 29

sub 2007 No. 47s 39

67CMeaning of retention amount in pt 4A

For this part, an amount is a retention amount for a building contract if—

(a)the amount is payable as part of the contract price under the building contract, but, under the contract, may be withheld from payment to the contracted party for the building contract—

(i)during the progress of the building work the subject of the contract; or

(ii)for a period (a maintenance period) after the completion of the building work; or

(iii)both during the progress of the building work and for a maintenance period; and

(b)the purpose of withholding the amount is to give financial protection to the contracting party in relation to the need to correct defects in the building work, or otherwise to secure, wholly or partly, the performance of the contract.

s 67C ins 1999 No. 43s 29

67DMeaning of subcontract in pt 4A

For this part, a building contract is a subcontract if—

(a)both the contracting party and the contracted party for the contract are building contractors; and

(b)for the contract, the contracted party is a subcontractor for the contracting party; and

(c)the building work the subject of the contract is the whole or a part of building work the subject of—

(i)another building contract, under which the contracting party mentioned in paragraphs (a) and (b) is the contracted party; or

(ii)a domestic building contract between the contracting party mentioned in paragraphs (a) and (b) and a consumer.

s 67D ins 1999 No. 43s 29

67EOperation of pt 4A

(1)Subject to any provision of this part that expressly provides that a building contract, or a provision of a building contract, is void, this part does not have effect to make void or voidable a building contract, or a provision of a building contract, even if—

(a)in entering into the building contract, or the building contract containing the provision, a party to the building contract commits an offence against this part; or

(b)the building contract or the provision of the building contract is inconsistent with a condition to which the building contract is subject under this part.

(2)However, if a building contract, or a provision of a building contract, is inconsistent with a provision (the Act provision) of this part applying to the building contract, the building contract, or the provision of the building contract, has effect only to the extent it is not inconsistent with the Act provision.

(3)Without limiting subsection (2), a building contract is unenforceable against the contracted party for the contract to the extent that the contract provides for retention amounts or security in a way that is inconsistent with a condition to which the contract is subject under division 2.

(4)This part—

(a)has effect in relation to a building contract despite anything in the building contract; and

(b)applies to a building contract even if—

(i)the contract was entered into outside Queensland; or

(ii)the parties to the contract have agreed that the law of Queensland does not apply to the contract or to a provision of the contract.

s 67E ins 1999 No. 43s 29

div hdg ins 1999 No. 43s 29

67FSuggested forms of contract

The commission may prepare and publish suggested forms for building contracts.

s 67F ins 1999 No. 43s 29

amd 2013 No. 38s 14sch 1

67GBuilding contracts to be in writing

(1)A building contractor commits an offence if—

(a)the building contractor enters into a building contract, whether as the contracting party or the contracted party for the contract; and

(b)the building contract is not put into writing—

(i)if the reasonable cost of the building work the subject of the contract is more than $10,000—before carrying out the building work is started; or

(ii)if the reasonable cost of the building work the subject of the contract is $10,000 or less—before carrying out the building work is finished.

Maximum penalty—80 penalty units.

(2)A building contractor commits an offence if—

(a)the building contractor enters into a building contract, whether as the contracting party or the contracted party for the contract; and

(b)the reasonable cost of the building work the subject of the building contract is $10,000 or less; and

(c)after the building contract is entered into but before the building contract has been put into writing, the reasonable cost of the building work the subject of the building contract becomes more than $10,000 because of a variation of the building contract, whether or not the variation is the first variation of the building contract; and

(d)the building contract, incorporating all variations, is not put into writing—

(i)if no building work has been carried out under the contract—before carrying out building work under the contract is started; or

(ii)otherwise—before there is further carrying out of building work under the contract.

Maximum penalty—80 penalty units.

(3)A building contractor commits an offence if—

(a)the building contractor enters into a building contract, whether as the contracting party or the contracted party for the contract; and

(b)the building contract is put into writing; and

(c)the building contract, in writing, does not comply with the formal requirements for a building contract stated in subsection (4).

Maximum penalty—80 penalty units.

(4)A building contract in writing complies with the formal requirements for a building contract if the contract states the following—

(a)the scope of the building work the subject of the contract;

(b)when the building work is to be completed;

(c)the amount to be paid for carrying out the building work or, if appropriate, how the amount to be paid for carrying out the building work is to be worked out;

(d)the parties’ agreement about retention amounts and securities to be held;

(e)the name of the building contractor who is the contracted party for the building contract;

(f)the licence number of the building contractor mentioned in paragraph (e), as it appears on the building contractor’s licence card;

(g)the address of the land where the building work is to be carried out.

(5)This section does not apply to a building contractor who enters into a building contract as a principal.

(6)If, in contravention of subsection (1) or (2), a building contract is not put into writing, a building contractor who is a party to the contract is taken not to commit an offence against the provision if—

(a)building work the subject of the contract must be carried out urgently; and

(b)it is not reasonably practicable to enter into a written contract in the particular circumstances.

Example—

a cyclone has caused considerable damage at a remote community, repairs are urgently needed, the parties to the building contract are not both present at the community and communications failure prevents transmission of written material between the parties

s 67G ins 1999 No. 43s 29

amd 2004 No. 6s 113sch 1; 2007 No. 47s 40

67IDirections given under building contracts

(1)This section applies if under a building contract the contracting party for the contract, or another person authorised under the contract, may, without the agreement of the contracted party for the contract, give a direction to the contracted party.

(2)Unless the building contract otherwise provides, a direction may initially be given other than in writing.

(3)However, if a direction is given other than in writing, the contracted party—

(a)may ask for the direction to be given in writing; and

(b)is not required to comply with the direction until it is given in writing.

(4)If a direction is given other than in writing, the contracting party commits an offence if the direction is not given to the contracted party in writing within 3 business days after it was given other than in writing.

Maximum penalty—80 penalty units.

(5)In this section—

direction includes agreement, approval, authorisation, certificate, decision, demand, determination, explanation, instruction, notice, order, permission, rejection, request or requirement.

s 67I ins 1999 No. 43s 29

amd 2004 No. 6s 113sch 1; 2007 No. 47s 41

67JSet-offs under building contracts

(1)The contracting party for a building contract may use a security or retention amount, in whole or in part, to obtain an amount owed under the contract, only if the contracting party has given notice in writing to the contracted party advising of the proposed use and of the amount owed.

(2)The notice must be given within 28 days after the contracting party becomes aware, or ought reasonably to have become aware, of the contracting party’s right to obtain the amount owed.

(3)If, because of subsections (1) and (2), the contracting party is stopped from using a security or retention amount, the contracting party for the contract is not stopped from recovering the amount owed in another way.

(4)This section does not apply if, under the contract—

(a)work has been taken out of the hands of the contracted party or the contract has been terminated; or

(b)the security or retention amount is to be used to make a payment into court to satisfy a notice of claim of charge under the Subcontractors’ Charges Act 1974.

(5)In this section—

amount owed, under a building contract, means an amount that, under the contract, is a debt due from the contracted party for the contract to the contracting party for the contract because of circumstances associated with the contracted party’s performance of the contract.

use of security or retention amount includes the act of converting securities into cash where the securities are held as negotiable instruments.

s 67J ins 1999 No. 43s 29

sub 2004 No. 6s 113sch 1

67KLimits for retention amounts and securities for building contracts other than subcontracts

(1)This section applies to a building contract if the contracting party under the contract is a principal or a special purpose vehicle.

(2)The building contract is subject to a condition that at any time before, under the contract, practical completion of building work is reached, the total value of the following is to be not more than 5% of the contract price for the contract—

(a)all retention amounts for the contract that are being withheld;

(b)all securities for the contract given and still held.

(3)Subsection (2) does not apply to retention amounts or securities to the extent that the retention amounts or securities are for the financial protection of the contracting party, having regard to amounts paid by the contracting party that relate to something that has not yet been installed in accordance with the requirements of the contract.

(4)The building contract is not subject to the condition mentioned in subsection (2) if—

(a)the contract—

(i)is in writing; and

(ii)explains the condition; and

(iii)expressly provides that the contract is not subject to the condition; and

(b)the provision of the contract that expressly provides in the way mentioned in paragraph (a)(iii) is initialled by the parties to the contract.

s 67K ins 1999 No. 43s 29

amd 2004 No. 6s 113sch 1; 2013 No. 58s 26

67LLimits for retention amounts and securities for subcontracts

(1)A subcontract is subject to a condition that, at any time before, under the contract, practical completion of building work is reached, the total value of the following is to be not more than 5% of the contract price for the subcontract—

(a)all retention amounts for the subcontract that are being withheld;

(b)all securities for the subcontract given and still held.

(2)Subsection (1) does not apply to retention amounts or securities to the extent that the retention amounts or securities are for the financial protection of the contracting party, having regard to amounts paid by the contracting party that relate to something that has not yet been installed in accordance with the requirements of the contract.

(3)Subsection (1) does not apply to a subcontract if the contracting party for the building contract is a special purpose vehicle.

s 67L ins 1999 No. 43s 29

amd 2013 No. 58s 27

67MLimits on deductions for retention amounts

(1)This section applies if—

(a)an amount (the relevant amount) is payable by the contracting party for a building contract to the contracted party for the building contract; and

(b)the relevant amount relates to carrying out building work under the contract; and

(c)the relevant amount, except for a retention amount for the building contract that is withheld, is paid to the contracted party.

(2)The building contract is subject to a condition that the retention amount withheld is to be not more than 10% of the relevant amount.

s 67M ins 1999 No. 43s 29

67NLimits for retention amounts and securities for building contracts after practical completion

(1)A building contract is subject to a condition that, at any time after, under the contract, practical completion of building work is reached, the total value of the following is to be not more than 2.5% of the contract price for the contract—

(a)all retention amounts for the contract that are being withheld;

(b)all securities for the contract given and still held.

(2)Subsection (1) does not apply to retention amounts or securities to the extent that the retention amounts or securities do not relate to the need to correct defects, identified in the defects liability period under the contract, in the building work under the contract.

s 67N ins 1999 No. 43s 29

67OSuspension of works

(1)This section applies if—

(a)the contracting party for a building contract has not complied with an order of a court or of the tribunal given in favour of the contracted party for the contract in relation to an issue arising under the contract; or

(b)all of the following apply—

(i)an amount is required to be paid to the contracted party for a building contract by a particular time;

(ii)the full amount is not paid, other than solely because of the retention of an amount lawfully permitted to be retained;

(iii)the requirement to pay the amount is not in dispute between the contracting party and the contracted party.

(2)The contracted party may give the contracting party a written notice stating—

(a)details of the circumstance mentioned in subsection (1)(a), or of the circumstances mentioned in subsection (1)(b)(i) to (iii); and

(b)that the contracted party intends to suspend building work the subject of the building contract if the order mentioned in subsection (1)(a) is not complied with, or if the amount mentioned in subsection (1)(b) is not paid, within the time stated in the written notice.

(3)The time stated in the written notice must be not less than 7 days after the written notice is given.

(4)If the order is not complied with, or the amount is not paid, within the time stated in the written notice, the contracted party may—

(a)give the contracting party a further written notice that the contracted party is suspending the building work immediately; and

(b)suspend the building work immediately the further written notice is given.

(5)If the contracted party suspends building work under subsection (4), the contracted party—

(a)is not in breach of the building contract; and

(b)keeps the contracted party’s rights under the contract, including any right to terminate the contract; and

(c)may at any time lift the suspension, even if the order has not been complied with or the amount has not been paid.

(6)Subsection (7) applies if—

(a)the order is complied with, or the amount is paid; and

(b)the suspension is still in force; and

(c)the contracting party gives written notice to the contracted party—

(i)advising the order has been complied with or the amount has been paid; and

(ii)requiring the contracted party to recommence the building work under the contract.

(7)The building contract is subject to a condition that the contracted party must recommence carrying out building work under the contract within 7 days after the contracted party receives the written notice mentioned in subsection (6)(c), or at a later time agreed to between the contracting party and the contracted party.

s 67O ins 1999 No. 43s 29

67PLate progress payments

(1)This section applies if—

(a)the contracting party for a building contract is required to pay an amount (the progress amount) to the contracted party for the building contract; and

(b)the progress amount is payable as the whole or a part of a progress payment; and

(c)the time (the payment time) by which the progress amount is required to be paid has passed, and the progress amount, or a part of the progress amount, has not been paid.

(2)For the period for which the progress amount, or the part of the progress amount, is still unpaid after the payment time, the contracting party is also required to pay the contracted party interest at the penalty rate, as applying from time to time, for each day the amount is unpaid.

(3)In this section—

penalty rate means—

(a)the rate made up of the sum of the following—

(i)10% a year;

(ii)the rate comprising the annual rate, as published from time to time by the Reserve Bank of Australia, for 90 day bills; or

(b)if the building contract provides for a higher rate of interest than the rate worked out under paragraph (a)—the higher rate.

s 67P ins 1999 No. 43s 29

amd 2000 No. 10s 183sch 1

div hdg ins 1999 No. 43s 29

67RApplication of div 3

This division applies to a building contract if the building contract is a construction management trade contract or a subcontract.

s 67R ins 1999 No. 43s 29

67SLodgement of security instead of retention amount or security in money form

(1)This section applies if the contracted party for a building contract is under a lawful obligation to lodge a security in the form of an amount of money (the relevant amount).

(2)The contracted party complies with the obligation if—

(a)the contracted party lodges with the contracting party a security, in the form of a government bond or a valuable instrument from an approved security provider, to take the place of the security in the form of money; and

(b)the value of the security is equal to the relevant amount.

(3)If the contracted party lodges a security in the form of a valuable instrument from an entity that is an approved security provider, and the entity stops being an approved security provider, the contracted party must, if asked by the contracting party, lodge a further security, in a form mentioned in subsection (2)(a), to take the place of the security in the form of money.

s 67S ins 1999 No. 43s 29

67TLodgement of security to replace retention amount or security in money form

(1)This section applies if, under a building contract, the contracting party is holding—

(a)an amount (the relevant amount) as a retention amount; or

(b)a security in the form of an amount of money (also the relevant amount).

(2)The building contract is subject to a condition that—

(a)the contracted party may lodge with the contracting party a security, in the form of a government bond or a valuable instrument from an approved security provider, to take the place of the retention amount or of the security in the form of money; and

(b)on the lodging of the security, the contracting party must pay the contracted party the relevant amount.

(3)However, subsection (2) applies only if the value of the security lodged is equal to the relevant amount.

(4)If the contracted party lodges a security in the form of a valuable instrument from an entity that is an approved security provider, and the entity stops being an approved security provider, the contracted party must, if asked by the contracting party, lodge a further security, in a form mentioned in subsection (2)(a), to take the place of the retention amount or of the security in the form of money.

s 67T ins 1999 No. 43s 29

67UVoid payment provision in construction management trade contract or subcontract

A provision in a construction management trade contract or subcontract is void to the extent it provides for payment of a progress payment by a contracting party to a contracted party later than 25 business days after submission of a payment claim.

s 67U ins 1999 No. 43s 29

sub 2004 No. 6s 113sch 1

div hdg ins 1999 No. 43s 29

67VOffence of not warning that contract is construction management trade contract

(1)The contracting party for a construction management trade contract commits an offence if—

(a)the construction management trade contract does not include a warning complying with subsection (2); and

(b)the warning is not initialled by the contracted party for the contract.

Maximum penalty—80 penalty units.

(2)The warning—

(a)must be in a form prescribed by regulation; and

(b)must be concerned with the possible dangers for the contracted party for the contract of entering into a construction management trade contract rather than a subcontract.

s 67V ins 1999 No. 43s 29

amd 2003 No. 1s 35; 2007 No. 47s 42

div hdg ins 1999 No. 43s 29

67WVoid payment provision in commercial building contract

A provision in a commercial building contract is void to the extent it provides for payment of a progress payment by a contracting party to a contracted party later than 15 business days after submission of a payment claim.

s 67W ins 1999 No. 43s 29

sub 2004 No. 6s 113sch 1

pt hdg sub 2014 No. 57 s 36

div hdg ins 2014 No. 57 s 36

67WADefinitions for pt 5

In this part—

appropriate insurance premium, for residential construction work, means the insurance premium set for the work under section 68D.

assistance includes arranging and paying for the rectification or completion of residential construction work by a licensed contractor appointed by the commission.

associated insurable work see section 67WD(1).

consumer, for residential construction work—

(a)means a person who contracts with a licensed contractor to carry out the work; and

(b)includes a person who purchases the work, once completed, if the work is primary insurable work.

Note—

See also section 68H(1)(c) and (5).

def consumer ins 2014 No. 57 s 36 (amd 2016 No. 11 s 23B(1))

incomplete, in relation to residential construction work—

(a)means work that has not reached practical completion; but

(b)does not include—

(i)work that does not comply with the contract because of a cosmetic difference; or

Example of a cosmetic difference—

a different shade of paint

(ii)work that is defective.

insurable value, of residential construction work, means an amount representing the reasonable cost to the insurer of having the work carried out by a licensed contractor on the basis that all building and other materials are to be supplied by the contractor (whether or not the work is carried out by a licensed contractor on that basis).

Examples of residential construction work the insurer may have to have carried out—

•relocating, transporting and resiting of an existing residence to another site

•the construction, off-site, of a residence or related roofed building and transportation of the residence or building to the relevant building site

•the erection of scaffolding required to carry out the residential construction work

•transporting labour and materials to the relevant building site.

optional additional cover see section 67Z(4).

other materials, for residential construction work, includes appliances if included as part of the contract for carrying out the residential construction work.

primary insurable work see section 67WC.

related roofed building see section 67WF.

residence see section 67WE.

residential construction work is—

(a)primary insurable work; or

(b)associated insurable work.

speculative residential construction work means residential construction work carried out by a building contractor if—

(a)the work is not carried out under a contract with a consumer; and

(b)the work is carried out on land owned by the building contractor; and

(c)the work is a single detached dwelling or a multiple dwelling of not more than 3 storeys; and

(d)the dwelling has been sold, or is intended for sale, to another person.

s 67WA ins 2014 No. 57 s 36

67WBWork not covered under the statutory insurance scheme

(1)The following work is not eligible for assistance from the statutory insurance assistance scheme—

(a)building work on, or on the site of, a building or proposed building that is or forms part of any of the following—

(i)a backpacker’s accommodation, boarding house, caravan park, guest house, holiday accommodation, hostel, hotel, lodging house or motel;

(ii)a correctional centre, lockup, prison, reformatory or watchhouse;

(iii)a hospital, nursing home or other health care building;

(iv)an orphanage or children’s home;

(v)a retirement village under the Retirement Villages Act 1999;

(vi)an educational institution;

(vii)group accommodation for persons with a physical or mental disability;

(viii) commercial or industrial premises;

(b)building work carried out by a building contractor for a person who is the holder of an owner-builder permit covering the work;

(c)loading, unloading or transporting a building that, if it were fixed to land, could be a residence, or a related roofed building, regardless of whether the transport is within the boundaries of land where the building is located or otherwise;

(d)off-site prefabrication of the whole of a building that could be a residence, or a related roofed building, whether or not the building is in its final form or in parts;

(e)loading, unloading or transporting a completed prefabricated building that could be a residence or a related roofed building, whether the building is transported whole or in parts, regardless of whether the transport is within the boundaries of land where the building is prefabricated, or to be located, or otherwise;

Example of a building transported in parts—

A building is too large to be transported as a completed unit, and is transported on 3 trucks, then joined together on the land where it is to be used.

(f)other work prescribed by regulation.

(2)Any work mentioned in subsection (1) is taken not to be primary insurable work or associated insurable work.

(3)Associated insurable work is not eligible for assistance from the statutory insurance assistance scheme unless carried out under a contract for primary insurable work and—

(a)for primary insurable work relating to a residence—the work is carried out on the site of the residence or proposed residence and is for residential purposes; or

(b)for primary insurable work relating to a related roofed building—the work is carried out on the site of the building or proposed building and is for residential purposes.

(4)In this section—

completed prefabricated building includes a prefabricated building—

(a)that has not been placed on land where it is to be used; or

(b)to which services have not been connected, including, for example, electricity or plumbing and drainage.

s 67WB ins 2014 No. 57 s 36

67WCMeaning of primary insurable work

(1)Primary insurable work is any of the following building work if carried out by a licensed contractor and the insurable value of the work is more than the regulated amount—

(a)the erection or construction of a residence or related roofed building;

(b)building work within the building envelope of a residence or related roofed building;

(c)building work for anything attached or connected to a residence or related roofed building that requires building or plumbing approval;

(d)the erection, construction or installation of a swimming pool within the meaning of the Building Act 1975, schedule 2;

(e)other building work prescribed by regulation.

(2)However, the following is not primary insurable work, but may be associated insurable work—

(a)fencing;

(b)landscaping;

(c)electrical work under the Electrical Safety Act 2002;

(d)installation, renovation, repair or replacement of any of the following—

(i)airconditioning;

(ii)driveways or paths;

(iii)units for heating water regardless of the source of energy for heating, and including units for heating swimming pools;

(iv)refrigeration;

(v)roller shades and shutter screens;

(vi)security doors and grills;

(vii)solar power units and associated electrical components;

(viii)water tanks that are not part of a primary water supply for a residence or related roofed building;

(e)other work prescribed by regulation.

(3)In this section—

building envelope, for a residence or related roofed building, means the outermost sides of the aggregation of the components of a building that have the primary function of separating the internal part of the residence or related roofed building from the external environment.

Example of a building envelope—

the slab and footings system, an external wall and a roof

regulated amount means $3300 or the higher amount, if any, prescribed by a regulation.

s 67WC ins 2014 No. 57 s 36

67WDMeaning of associated insurable work

(1)Associated insurable work is any additional work that may be contracted to be carried out under a contract for primary insurable work if—

(a)for primary insurable work relating to a residence—the work is carried out on the site of the residence or proposed residence and is for residential purposes; or

(b)for primary insurable work relating to a related roofed building—the work is carried out on the site of the building or proposed building and is for residential purposes.

(2)To remove any doubt, it is declared that associated insurable work may include work that is not building work.

Examples for subsection (2)—

electrical work under the Electrical Safety Act 2002, erecting scaffolding, or earthmoving and excavation work

s 67WD ins 2014 No. 57 s 36

67WEMeaning of residence

(1)Each of the following structures is a residence if the structure is fixed to land and used for residential purposes—

(a)a single detached dwelling;

(b)1 or more attached dwellings that are separated by a common wall;

Examples—

a row house, terrace house, townhouse or villa unit

(c)a building, of not more than 3 storeys, containing 2 or more separate residential units.

(2)Part of a structure is also a residence if the structure is fixed to land and the part is designed to be used, and is used, for residential purposes.

(3)A manufactured home fixed to land in a residential park (whether or not it is permanently fixed) is also a residence.

(4)For subsection (1)(c), a regulation may prescribe how to calculate the number of storeys of a building.

(5)Each of the following things is not a residence—

(a)boats, caravans, motor vehicles, tents, trailers, trains and similar things;

(b)a building designed as a temporary building, including, for example, a demountable building.

(6)In this section—

manufactured home see the Manufactured Homes (Residential Parks) Act 2003, section 10.

residential park see the Manufactured Homes (Residential Parks) Act 2003, section 12.

storey means a space within a building which is situated between one floor level and the next floor level, or if there is no floor above, the ceiling or roof above, but is not a mezzanine or space that contains only—

(a)a lift, shaft, stairway or meter room; or

(b)a bathroom, shower room, laundry, water closet or other sanitary compartment; or

(c)accommodation intended for not more than 3 vehicles; or

(d)any combination of a thing mentioned in paragraphs (a) to (c).

s 67WE ins 2014 No. 57 s 36

67WFMeaning of related roofed building

(1)A related roofed building means a building that—

(a)has a roof designed to be—

(i)part of the building; and

(ii)impervious to water or wind; and

(b)is, or is proposed to be, on the site of a residence or proposed residence; and

(c)is used, or proposed to be used, for a purpose related to the use of a residence or proposed residence.

Example of related roofed building—

A private garage, shed, carport, toilet building or change room on, or proposed to be placed on, the site of an existing or proposed residence.

(2)However, a building is not a related roofed building if—

(a)the building is a residence; or

(b)the roof of the building is a sail, umbrella or similar thing.

s 67WF ins 2014 No. 57 s 36

div hdg ins 2014 No. 57 s 36

67XStatutory insurance scheme

(1)The statutory insurance scheme previously established under this Act is continued.

(2)The purpose of the statutory insurance scheme is to provide assistance to consumers of residential construction work for loss associated with work that is defective or incomplete.

(3)Assistance can not be provided under the scheme to a consumer unless the consumer has suffered loss as a consequence of residential construction that is defective or incomplete.

(4)The statutory insurance scheme may operate under, and be referred to as, the name prescribed by regulation.

s 67X ins 2007 No. 47 s 43

sub 2014 No. 57 s 36

div hdg ins 2014 No. 57 s 36

67YAssistance available under statutory insurance scheme

The terms of cover under which a person is entitled to assistance under the statutory insurance scheme are prescribed by regulation.

s 67Y ins 2007 No. 47 s 43

amd 2013 No. 38 s 14 sch 1

sub 2014 No. 57 s 36

67ZOptional additional cover

(1)A consumer may obtain optional additional cover for residential construction work if a licensed contractor paid an insurance premium for the work under section 68B(2).

(2)A licensed contractor who carries out speculative residential construction work may obtain optional additional cover for the work if the contractor paid an insurance premium for the work under section 68B(3).

(3)However, optional additional cover is only obtainable by paying the insurance premium—

(a)for a consumer—by the earlier of the following—

(i)30 business days after the day the consumer enters the relevant contract;

(ii)the day the residential construction work, to be carried out under the relevant contract, starts; or

(b)for a licensed contractor who carries out speculative residential construction work—before the work starts.

(4)A regulation may provide for other matters relating to optional additional cover, including, for example—

(a)the circumstances under which a person is entitled to optional additional cover; or

(b)any limitations or exclusions that may apply in relation to optional additional cover.

(5)In this section—

optional additional cover means additional assistance provided to a person, or the additional compensation to be paid under the statutory insurance scheme, as prescribed by regulation.

relevant contract, for a consumer, means a contract with a licensed contractor for residential construction work.

s 67Z ins 2014 No. 57 s 36

68Persons not entitled to assistance under statutory insurance scheme

(1)A licensed contractor who carries out speculative residential construction work is not entitled to assistance under the statutory insurance scheme for the work.

Note—

See section 68A (Licensed contractor pays insurance premium on behalf of consumer).

(2)If a person enters into 1 or more building contracts, in force at the same time, to construct 3 or more living units, the person is not entitled to assistance under the statutory insurance scheme for the work carried out under the contracts.

(3)For subsection (2)—

(a)a single detached dwelling is taken to be 1 living unit; and

(b)a residential unit is taken to be 1 living unit; and

(c)a duplex is taken to be 2 living units.

(4)A regulation may prescribe other circumstances under which a person is not entitled to assistance under the statutory insurance scheme.

(5)Nothing in section (1), (2) or (4) affects the right of a subsequent owner of residential construction work mentioned in this section to make a claim for assistance under the statutory insurance scheme.

s 68 amd 1994 No. 20 s 22; 1998 No. 13 s 189; 1999 No. 43 s 30; 2000 No. 20 s 29 sch 3; 2007 No. 47 s 44; 2009 No. 36 s 872 sch 2; 2013 No. 38 s 14 sch 1

sub 2014 No. 57 s 36

div hdg ins 2014 No. 57 s 36

68ALicensed contractor pays insurance premium on behalf of consumer

(1)A licensed contractor who pays an insurance premium under this division pays the premium on behalf of a consumer.

(2)A construction manager who pays an insurance premium under this division pays the premium on behalf of the principal who engages the manager.

(3)The licensed contractor and construction manager are not entitled to assistance under the statutory insurance scheme because the contractor or manager pays the insurance premium under this division.

s 68A ins 2007 No. 47 s 45

sub 2014 No. 57 s 36

68BWhen insurance premium is payable by licensed contractor

(1)Subsection (2) applies to a licensed contractor who is to carry out residential construction work under a contract with a consumer unless the work is the subject of a construction management contract.

(2)The licensed contractor must collect from the consumer, and pay to the commission, the appropriate insurance premium before the first of the following to happen—

(a)10 business days elapse from the day the contract was entered into;

(b)the residential construction work starts.

Maximum penalty—100 penalty units.

(3)A licensed contractor who is to carry out residential construction work that is speculative residential construction work must pay the appropriate insurance premium for the work before the work starts.

Maximum penalty—100 penalty units.

s 68B ins 2007 No. 47 s 45

sub 2014 No. 57 s 36

68CWhen insurance premium is payable by construction manager

(1)This section applies to a construction manager if a principal engages the manager under a construction management contract to manage the carrying out of residential construction work.

(2)If the construction manager holds a contractor’s licence of the relevant class for the construction management contract, the manager must collect from the principal, and pay to the commission, the appropriate insurance premium before the first of the following to happen—

(a)10 business days elapse from the day the manager is engaged under the contract;

(b)the residential construction work starts.

Maximum penalty—100 penalty units.

s 68C ins 2007 No. 47 s 45

sub 2014 No. 57 s 36