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Queensland
QUEENSLAND BUILDING
SERVICES AUTHORITY
AMENDMENT BILL 1999
Queensland
QUEENSLAND BUILDING SERVICES
AUTHORITY AMENDMENT BILL 1999
TABLE OF PROVISIONS
Section Page
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4 Amendment of s 4 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5 Insertion of new ss 4B and 4C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4B Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4C Certain building contractors not bound . . . . . . . . . . . . . . . . . . . . . . . 9
6 Amendment of s 9 (Role of board) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7 Replacement of s 10 (Composition of board) . . . . . . . . . . . . . . . . . . . . . . . . 10
10 Composition of board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10A Appointment of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
8 Amendment of s 12 (Proceedings at meetings) . . . . . . . . . . . . . . . . . . . . . . 11
9 Replacement of s 15 (Fees and allowances) . . . . . . . . . . . . . . . . . . . . . . . . 12
15 Fees and allowances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
10 Amendment of s 18 (Role of the general manager) . . . . . . . . . . . . . . . . . . . 12
11 Insertion of new pt 2, div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Division 5--The insurance manager
21 Appointment of insurance manager . . . . . . . . . . . . . . . . . . . . . . . . . . 12
22 Role of insurance manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
12 Amendment of s 25 (General Statutory Fund) . . . . . . . . . . . . . . . . . . . . . . . 13
13 Amendment of s 26 (Insurance Fund) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
14 Amendment of s 31 (Entitlement to contractor's licence) . . . . . . . . . . . . . . 14
15 Amendment of s 33 (Application for licence) . . . . . . . . . . . . . . . . . . . . . . . . 15
2
Queensland Building Services Authority
Amendment
16 Amendment of s 35 (Imposition of conditions etc. on grant of licence) . . . 15
17 Amendment of s 36 (Subsequent imposition of conditions etc.) . . . . . . . . . 15
18 Insertion of new s 38A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
38A Receipt of fee does not revive licence . . . . . . . . . . . . . . . . . . . . . . . 16
19 Amendment of s 39 (Register) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
20 Amendment of s 42 (Unlawful carrying out of building work) . . . . . . . . . . . 18
21 Amendment of s 46 (Notification on certificate of title) . . . . . . . . . . . . . . . 19
22 Amendment of s 48 (Cancellation or suspension of licence) . . . . . . . . . . . 19
23 Replacement of s 49A (Immediate cancellation of licence) . . . . . . . . . . . . 20
49A Immediate suspension of licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
24 Insertion of new pt 3, div 9A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Division 9A--Monitoring continued satisfaction of financial
requirements
50A Approved audit program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
50B Notice of proposed audit program . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
50C Supply of financial information under approved audit
program or for other reason . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
25 Replacement of s 51 (False representation) . . . . . . . . . . . . . . . . . . . . . . . . . 23
51 Improper use of licence card, certificate or number . . . . . . . . . . . . . 23
51A Other offences relating to unlawful carrying out of building work . . 24
26 Insertion of new ss 53A and 53B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
53A Satisfying financial requirements at renewal . . . . . . . . . . . . . . . . . . 25
53B False or misleading documents about financial requirements . . . . . 26
27 Insertion of new pt 3A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
PART 3A--EXCLUDED AND PERMITTED INDIVIDUALS AND
EXCLUDED COMPANIES
Division 1--Preliminary
56AA Definitions for pt 3A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
56AB Operation of pt 3A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
56AC Excluded individuals and excluded companies . . . . . . . . . . . . . . . . . 27
Division 2--Categorisation as permitted individual
56AD Becoming a permitted individual . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3
Queensland Building Services Authority
Amendment
Division 3--Licence exclusion and cancellation
56AE Exclusion from contractor's licence . . . . . . . . . . . . . . . . . . . . . . . . . . 30
56AF Procedure if licensee is excluded individual . . . . . . . . . . . . . . . . . . . 30
56AG Procedure if licensee is excluded company . . . . . . . . . . . . . . . . . . . 31
28 Insertion of new pt 4A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
PART 4A--BUILDING CONTRACTS OTHER THAN
DOMESTIC BUILDING CONTRACTS
Division 1--Preliminary
67A Definitions for pt 4A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
67B Meaning of "construction management trade contract" in pt 4A . . 36
67C Meaning of "retention amount" in pt 4A . . . . . . . . . . . . . . . . . . . . . . 36
67D Meaning of "subcontract" in pt 4A . . . . . . . . . . . . . . . . . . . . . . . . . . 37
67E Operation of pt 4A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Division 2--All building contracts
67F Suggested forms of contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
67G Building contracts to be in writing . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
67H Agreed contract variations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
67I Directions given under building contracts . . . . . . . . . . . . . . . . . . . . . 43
67J Set-offs under building contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
67K Limits for retention amounts and securities for building
contracts other than subcontracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
67L Limits for retention amounts and securities for subcontracts . . . . . . 46
67M Limits on deductions for retention amounts . . . . . . . . . . . . . . . . . . . . 46
67N Limits for retention amounts and securities for building
contracts after practical completion . . . . . . . . . . . . . . . . . . . . . . . . . . 47
67O Suspension of works . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
67P Late progress payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
67Q Pay if or when paid clauses void . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Division 3--Construction management trade contracts and subcontracts
67R Application of div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
67S Lodgement of security instead of retention amount or
security in money form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
4
Queensland Building Services Authority
Amendment
67T Lodgement of security to replace retention amount or
security in money form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
67U Implied conditions for prompt payment . . . . . . . . . . . . . . . . . . . . . . . 51
Division 4--Warning for construction management trade contracts
67V Offence of not warning that contract is construction
management trade contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Division 5--Commercial building contracts
67W Implied conditions for prompt payment . . . . . . . . . . . . . . . . . . . . . . . 53
29 Amendment of s 68 (Payment of insurance premium) . . . . . . . . . . . . . . . . . 55
30 Amendment of s 69 (Insurance of building work) . . . . . . . . . . . . . . . . . . . . . 55
31 Amendment of s 72 (Power to require rectification of building work) . . . . 56
32 Amendment of s 74 (Tenders for rectification work) . . . . . . . . . . . . . . . . . . 57
33 Amendment of s 101 (Disciplinary action) . . . . . . . . . . . . . . . . . . . . . . . . . . 58
34 Insertion of new s 109A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
109A Service of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
35 Insertion of new ss 111A-111C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
111A Responsibility for acts or omissions of representatives . . . . . . . . . . 59
111B Executive officers must ensure company complies with Act . . . . . . 60
111C Liability of directors for amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
36 Replacement of s 114 (Protection) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
114 Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
37 Amendment of schedule (Transitional and Validating provisions) . . . . . . . 63
38 Insertion of new schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SCHEDULE 2
DICTIONARY
1999
A BILL
FOR
An Act to amend the Queensland Building Services Authority Act 1991
s1 6 s4
Queensland Building Services Authority
Amendment
The Parliament of Queensland enacts-- 1
title 2
Short
Clause 1. This Act may be cited as the Queensland Building Services Authority 3
Amendment Act 1999. 4
5
Commencement
Clause 2. This Act commences on a day to be fixed by proclamation. 6
amended 7
Act
Clause 3. This Act amends the Queensland Building Services Authority Act 8
1991. 9
of s 4 (Definitions) 10
Amendment
Clause 4.(1) Section 4, `In this Act--'-- 11
omit, insert-- 12
`The dictionary in schedule 2 defines particular words used in this Act.'. 13
(2) Section 4-- 14
insert-- 15
` "approved security provider", for part 4A, see section 67A. 16
"building contract", for part 4A, see section 67A. 17
"carry out building work", for part 4A, see section 67A. 18
"commercial building contract", for part 4A, see section 67A. 19
"completed building inspection" means-- 20
(a) the inspection or investigation of, and the provision of advice or a 21
report about, a completed building; or 22
s4 7 s4
Queensland Building Services Authority
Amendment
(b) certification about whether the erection or construction of a 1
completed building has been in compliance with a relevant code, 2
standard or statutory requirement. 3
"construction management trade contract", for part 4A, see 4
section 67A. 5
"contracted party", for part 4A, see section 67A. 6
"contracting party", for part 4A, see section 67A. 7
"contract price", for part 4A, see section 67A. 8
"excluded company", for part 3A, see section 56AC(7). 9
"excluded individual", for part 3A, see section 56AA. 10
"executive officer", of a company, means a person who is-- 11
(a) a director or secretary of the company; or 12
(b) a person who is concerned with, or takes part in, the company's 13
management, whether or not the person is a director or secretary 14
of the company or the person's position is given the name of 15
executive officer. 16
"field work" means-- 17
(a) a site investigation; or 18
(b) a site assessment; or 19
(c) soil sampling; or 20
(d) soil collection. 21
"fire protection system", for a building, means a system of fire protection 22
for all or part of the building comprising some or all of the 23
following-- 24
(a) portable fire-fighting appliances, including, for example, wheeled 25
fire extinguishers, fire hoses, fire blankets and portable fire 26
extinguishers; 27
(b) fire hydrants, with or without pumps; 28
(c) fire hose reels, with or without pumps; 29
s4 8 s4
Queensland Building Services Authority
Amendment
(d) a fire detection system, alarm system or emergency warning and 1
communication system; 2
(e) a fire suppression system or fire sprinkler system, whether solid 3
based, liquid based or gas based; 4
(f) fire doors, fire shutters and fire damper assemblies. 5
"influential person", for part 3A, see section 56AA. 6
"permitted individual", for part 3A, see section 56AA. 7
"principal", for part 4A, see section 67A. 8
"progress payment", for part 4A, see section 67A. 9
"relevant bankruptcy event", for part 3A, see section 56AC(1)(a). 10
"relevant company event", for part 3A, see section 56AC(2)(b). 11
"relevant event", for part 3A, see section 56AA. 12
"retention amount", for part 4A, see section 67A. 13
"security", for part 4A, see section 67A. 14
"site classification" means the classification of a site, or the reclassification 15
of a site, under a standard directed to ensuring the appropriate selection 16
or design of footings. 17
"site testing" means-- 18
(a) field work for soil testing or site classification; or 19
(b) laboratory testing of soil. 20
"subcontract", for part 4A, see section 67A. 21
"valuable instrument", for part 4A, see section 67A. 22
"variation", for part 4A, see section 67A. 23
"written form", for part 4A, see section 67A.'. 24
(3) Section 4, definition "building work", paragraph (g)-- 25
omit, insert-- 26
`(g) the installation, maintenance, or certification of the installation or 27
maintenance, of a fire protection system for a commercial or 28
residential building; or 29
s5 9 s6
Queensland Building Services Authority
Amendment
(h) carrying out site testing and classification in preparation for the 1
erection or construction of a building on the site; or 2
(i) carrying out a completed building inspection;'. 3
(4) Section 4, definitions (as amended)-- 4
relocate to schedule 2, as inserted by this Act. 5
of new ss 4B and 4C 6
Insertion
Clause 5. Part 1, after section 4A-- 7
insert-- 8
binds all persons 9
`Act
`4B. This Act binds all persons, including the State and, so far as the 10
legislative power of the Parliament permits, the Commonwealth and the 11
other States. 12
building contractors not bound 13
`Certain
`4C. Parts 5 and 6 do not bind a building contractor to the extent that the 14
business carried on by the building contractor consists of or includes 15
carrying out completed building inspections.'. 16
of s 9 (Role of board) 17
Amendment
Clause 6.(1) Section 9(e)-- 18
renumber as section 9(f). 19
(2) Section 9-- 20
insert-- 21
`(e) to give advice to the Minister about unfair or unconscionable 22
trading practices affecting security of payments to 23
subcontractors;'. 24
s7 10 s7
Queensland Building Services Authority
Amendment
of s 10 (Composition of board) 1
Replacement
Clause 7. Section 10-- 2
omit, insert-- 3
of board 4
`Composition
`10.(1) The board consists of 8 members, of whom-- 5
(a) 3 members are to be licensees, or directors of companies that are 6
licensees, subject to the following conditions-- 7
(i) at least 1 of the licensees must be a licensed builder; 8
(ii) at least 1 of the licensees must be a licensed contractor other 9
than a licensed builder; and 10
(b) 2 members are to be appointed as representatives of consumers; 11
and 12
(c) 1 member is to be appointed as a representative of either or both 13
of the following-- 14
(i) the general insurance industry; 15
(ii) the accounting profession; and 16
(d) 1 member is to be appointed as a representative of building and 17
construction unions; and 18
(e) 1 member is a public service officer (the "public service 19
member"). 20
`(2) All members of the board, other than the public service member, are 21
voting members. 22
`(3) The public service member's place at a meeting of the board may be 23
filled by another public service officer chosen by the public service member. 24
of members 25
`Appointment
`10A.(1) The Governor in Council is to appoint-- 26
(a) all the members of the board; and 27
(b) 1 of the members to be the chairperson of the board. 28
s8 11 s8
Queensland Building Services Authority
Amendment
`(2) The appointment of a member is to be for a term, of not longer than 1
3 years, decided by the Governor in Council and stated in the member's 2
instrument of appointment. 3
`(3) The office of a member becomes vacant if-- 4
(a) the member resigns by signed notice of resignation given to the 5
Minister; or 6
(b) the member becomes employed by, or becomes a contractor of, 7
the authority; or 8
(c) the member's appointment is ended by the Governor in Council 9
under subsection (4). 10
`(4) The Governor in Council may, at any time, end the appointment of a 11
member for any reason or without giving a reason. 12
`(5) The Governor in Council may appoint a person to act as a member 13
of the board-- 14
(a) when there is a vacancy in the office of a voting member; or 15
(b) for any period, or all periods, when a voting member is absent 16
from duty or unable for any reason to act in the office.'. 17
of s 12 (Proceedings at meetings) 18
Amendment
Clause 8.(1) Section 12(2)(a), `5 members'-- 19
omit, insert-- 20
`4 voting members'. 21
(2) Section 12(2)(b), `members'-- 22
omit, insert-- 23
`voting members'. 24
(3) Section 12(2)(c), `each member'-- 25
omit, insert-- 26
`each voting member'. 27
s9 12 s 11
Queensland Building Services Authority
Amendment
of s 15 (Fees and allowances) 1
Replacement
Clause 9. Section 15-- 2
omit, insert-- 3
and allowances 4
`Fees
`15.(1) The members of the board are entitled to the fees and allowances 5
decided by the Governor in Council for their membership of the board. 6
`(2) Members of committees established under this division are entitled 7
to the fees and allowances decided by the Governor in Council for their 8
membership of the committees, but only if they are also members of the 9
board.'. 10
of s 18 (Role of the general manager) 11
Amendment
Clause 10.(1) Section 18(2)-- 12
insert-- 13
`(ea) undertaking strategic planning, having regard especially to cyclical 14
industry conditions, to ensure that the authority's available 15
revenue base, and its assets and reserves, are enough to allow the 16
authority to maintain the services it is required to provide;'. 17
(2) Section 18(2)(h)(ii)---- 18
omit. 19
of new pt 2, div 5 20
Insertion
Clause 11. After section 20-- 21
insert-- 22
`Division 5--The insurance manager 23
of insurance manager 24
`Appointment
`21.(1) The authority must appoint an individual to be the insurance 25
manager of the authority. 26
s 12 13 s 13
Queensland Building Services Authority
Amendment
`(2) The remuneration and conditions of appointment of the insurance 1
manager are to be decided by the authority. 2
`(3) The authority may appoint a person to act as insurance manager of 3
the authority-- 4
(a) when there is a vacancy in the position of insurance manager of 5
the authority; or 6
(b) for any period, or all periods, when the insurance manager is 7
absent from duty or, for any other reason, can not perform the 8
functions of the position. 9
of insurance manager 10
`Role
`22.(1) The insurance manager must report regularly to the board on the 11
administration of the statutory insurance scheme and, if asked by the board, 12
must give the board a special report on a particular subject. 13
`(2) The insurance manager is independent of the general manager's 14
direction in reporting under subsection (1), but is otherwise subject to the 15
general manager's direction.'. 16
of s 25 (General Statutory Fund) 17
Amendment
Clause 12. Section 25(2)-- 18
insert-- 19
`(c) all amounts transferred from the Insurance Fund under 20
section 26.'. 21
of s 26 (Insurance Fund) 22
Amendment
Clause 13. Section 26(3)-- 23
omit, insert-- 24
`(3) The following amounts are to be paid from the fund-- 25
(a) the costs of administering the statutory insurance scheme; 26
s 14 14 s 14
Queensland Building Services Authority
Amendment
(b) the costs of paying out claims under the statutory insurance 1
scheme; 2
(c) if a regulation is in force under subsection (4), the amounts 3
decided by the authority from time to time under subsection (5). 4
`(4) A regulation may state a maximum amount that may, within any 5
period stated in the regulation, be transferred from the fund to the General 6
Statutory Fund for use by the authority in administering this Act, other than 7
in administering the statutory insurance scheme. 8
`(5) The authority may, from time to time, transfer amounts from the 9
fund to the General Statutory Fund if, each time an amount is transferred, 10
the transfer is consistent with the requirements of the regulation in force 11
under subsection (4). 12
`(6) The fixing, under a regulation, of the amounts payable as insurance 13
premiums in relation to building work must take into account any 14
requirement for the transfer from time to time under subsection (5) of 15
amounts from the fund to the General Statutory Fund.'. 16
of s 31 (Entitlement to contractor's licence) 17
Amendment
Clause 14.(1) Section 31(1)(c) and (2)(c), `financial requirements imposed by 18
regulation'-- 19
omit, insert-- 20
`relevant financial requirements stated in the board's policies'. 21
(2) Section 31(2)(b)-- 22
omit, insert-- 23
`(b) the company's nominated supervisor holds a licence specifically 24
identifying, as a class of building work that the supervisor may 25
supervise, the same class of building work for which the licence 26
is sought by the company; and'. 27
s 15 15 s 17
Queensland Building Services Authority
Amendment
of s 33 (Application for licence) 1
Amendment
Clause 15. Section 33-- 2
insert-- 3
`(3) In deciding whether to give a licence, the authority may make 4
inquiries and investigations that are reasonable and appropriate in the 5
circumstances, including for example by-- 6
(a) seeking confirmation about the experience of applicants through 7
site inspections and referee checks; and 8
(b) carrying out checks with the Australian Securities and Investment 9
Commission, bankruptcy registers and credit bureaus.'. 10
of s 35 (Imposition of conditions etc. on grant of licence) 11
Amendment
Clause 16. Section 35-- 12
insert-- 13
`(2) Without limiting subsection (1), a contractor's licence is subject to 14
the condition that-- 15
(a) the licensee's financial circumstances must at all times satisfy the 16
relevant financial requirements stated in the board's policies; and 17
(b) variations of the contractor's turnover and assets must be notified, 18
or notified and approved, in accordance with the relevant financial 19
requirements stated in the board's policies.'. 20
of s 36 (Subsequent imposition of conditions etc.) 21
Amendment
Clause 17. Section 36-- 22
insert-- 23
`(3A) A condition may be imposed requiring the licensee to complete a 24
course module included in technical or managerial national competency 25
standards relevant to the building industry.'. 26
s 18 16 s 19
Queensland Building Services Authority
Amendment
of new s 38A 1
Insertion
Clause 18. Part 3, division 5-- 2
insert-- 3
of fee does not revive licence 4
`Receipt
`38A.(1) This section applies if, despite the cancellation or suspension of 5
a licence under this Act, other than a suspension under section 38(1), the 6
authority accepts the payment of an amount purporting to be the licence fee 7
for the licence. 8
`(2) The licence does not stop being cancelled or suspended merely 9
because of the authority's acceptance of the payment. 10
`(3) Subsection (2) applies whether or not the authority gives a receipt for 11
the payment.'. 12
of s 39 (Register) 13
Amendment
Clause 19.(1) Section 39(4) and (5)-- 14
renumber as section 39(8) and (10). 15
(2) Section 39(3)-- 16
omit, insert-- 17
`(3) The register must also contain against the name of each licensee a 18
note of-- 19
(a) each direction of the authority requiring the licensee to rectify 20
building work; and 21
(b) each order made against the licensee by the tribunal under 22
section 101(4);1 and 23
(c) each time the licensee is convicted of an offence against this Act 24
and the provision of this Act that was contravened. 25
`(4) No information may be included in the register under 26
subsection (3)(a) until-- 27
1 Section 101 (Disciplinary action)
s 19 17 s 19
Queensland Building Services Authority
Amendment
(a) all periods for seeking a review of the direction, and for making 1
any appeal arising out of review of the direction, have ended; and 2
(b) any review or appeal about the direction is finally decided or is not 3
proceeded with. 4
`(5) No information may be included in the register under 5
subsection (3)(b) until-- 6
(a) all periods for making an appeal arising out of the tribunal's order 7
have ended; and 8
(b) any appeal about the order is finally decided or is not proceeded 9
with. 10
`(6) No information may be included in the register under 11
subsection (3)(c) until-- 12
(a) all periods for making an appeal arising out of the conviction have 13
ended; and 14
(b) any appeal about the conviction is finally decided or is not 15
proceeded with. 16
`(7) A note made in the register under subsection (3) must be taken off 17
the register 5 years after it is made.'. 18
(3) Section 39(8), as renumbered, `written'-- 19
omit. 20
(4) Section 39-- 21
insert-- 22
`(9) Particulars may be given under subsection (8)-- 23
(a) by written notice; or 24
(b) in another way approved by the authority, and advised generally 25
to licensees, as a suitable way for advising particulars to the 26
authority.'. 27
s 20 18 s 20
Queensland Building Services Authority
Amendment
of s 42 (Unlawful carrying out of building work) 1
Amendment
Clause 20.(1) Section 42(3), `A person'-- 2
omit, insert-- 3
`Subject to subsection (4), a person'. 4
(2) Section 42(4) to (6)-- 5
renumber as section 42(5) to (7). 6
(3) Section 42(7)-- 7
renumber as section 42(9). 8
(4) Section 42-- 9
insert-- 10
`(4) A person is not stopped under subsection (3) from claiming 11
reasonable remuneration for carrying out building work, but only if the 12
amount claimed-- 13
(a) is not more than the amount paid by the person in supplying 14
materials and labour for carrying out the building work; and 15
(b) does not include allowance for any of the following-- 16
(i) the supply of the person's own labour; 17
(ii) the making of a profit by the person for carrying out the 18
building work; 19
(iii) costs incurred by the person in supplying materials and 20
labour if, in the circumstances, the costs were not reasonably 21
incurred; and 22
(c) is not more than any amount agreed to, or purportedly agreed to, 23
as the price for carrying out the building work; and 24
(d) does not include any amount paid by the person that may fairly be 25
characterised as being, in substance, an amount paid for the 26
person's own direct or indirect benefit.'. 27
s 21 19 s 22
Queensland Building Services Authority
Amendment
(5) Section 42-- 1
insert-- 2
`(8) An unlicensed person who carries out, or undertakes to carry out, 3
design work does not contravene this section if-- 4
(a) the person carries on business as a landscape architect; and 5
(b) the person carries out the design work, or undertakes to carry it 6
out, as part of the person's work as a landscape architect; and 7
(c) the design work is of a type ordinarily carried out as an 8
appropriate or necessary component of a landscape architect's 9
work.'. 10
of s 46 (Notification on certificate of title) 11
Amendment
Clause 21.(1) Section 46(2) to (5)-- 12
renumber as section 46(3) to (6). 13
(2) Section 46-- 14
insert-- 15
`(2) If the authority becomes aware that building work has been carried 16
out, and that a permit should have been, but was not, obtained under 17
section 44 for carrying out the building work, the authority must notify the 18
registrar of titles of the carrying out of the building work without a permit.'. 19
of s 48 (Cancellation or suspension of licence) 20
Amendment
Clause 22.(1) Section 48(d)-- 21
omit. 22
(2) Section 48(h), after `condition'-- 23
insert-- 24
`to which the licence is subject under section 35 or that is'. 25
s 23 20 s 23
Queensland Building Services Authority
Amendment
of s 49A (Immediate cancellation of licence) 1
Replacement
Clause 23. Section 49A-- 2
omit, insert-- 3
suspension of licence 4
`Immediate
`49A.(1) The authority may suspend a licensee's licence without 5
allowing the licensee time to make written representations before the 6
suspension takes effect if the authority believes, on reasonable grounds, 7
there is a real likelihood that serious financial loss or other serious harm will 8
happen to any of the following if the licence is not immediately 9
suspended-- 10
(a) other licensees; 11
(b) the employees of other licensees; 12
(c) consumers; 13
(d) suppliers of building materials or services. 14
`(2) The suspension under subsection (1) is imposed by written notice 15
given to the licensee that also-- 16
(a) tells the licensee-- 17
(i) the reasons for the suspension; and 18
(ii) that the licensee may make written representations for a 19
lifting of the suspension; and 20
(iii) that the licensee may apply to the tribunal for a review of the 21
authority's decision to immediately suspend the licence; and 22
(b) briefly explains how the suspension could lapse under 23
subsection (3). 24
`(3) The suspension under subsection (1) lapses if-- 25
(a) the authority does not, within 10 days after the licensee is given 26
notice of the suspension, give the licensee notice under 27
section 49(1) of the authority's reasons for a proposed 28
cancellation or suspension of the licence under section 48 29
(a "section 49 notice"); or 30
s 24 21 s 24
Queensland Building Services Authority
Amendment
(b) the authority, within 10 days after the licensee is given notice of 1
the suspension, gives the licensee a section 49 notice, but the 2
licence is not suspended or cancelled under section 48 within 3
3 months, or a longer period decided under subsections (4) and 4
(5), after the section 49 notice is given; or 5
(c) the authority suspends or cancels the licence under section 48. 6
`(4) The authority may extend the period of 3 months mentioned in 7
subsection (3)(b), but only if it appears to the authority that, in the 8
circumstances, it is in the interests of the licensee to do so. 9
`(5) The period may be extended more than once, but whenever it is 10
extended, it must not be extended for more than 1 month. '. 11
of new pt 3, div 9A 12
Insertion
Clause 24. After section 50-- 13
insert-- 14
`Division 9A--Monitoring continued satisfaction of financial 15
requirements 16
audit program 17
`Approved
`50A.(1) The Minister may approve a program (an "approved audit 18
program") under which the authority may audit licensees to find out if they 19
continue to satisfy the relevant financial requirements stated in the board's 20
policies. 21
`(2) An approved audit program must state the following-- 22
(a) the purpose of the program; 23
(b) when the program starts; 24
(c) the period over which the program is to be carried out; 25
(d) objective criteria for selecting licensees who are to be the subject 26
of audit; 27
(e) if the licensees to be audited are to be selected from licensees 28
holding licences of a particular class, a description of the class. 29
s 24 22 s 24
Queensland Building Services Authority
Amendment
`(3) Despite anything in an approved audit program, a licensee may be 1
the subject of an audit under an approved audit program only if there has not 2
been an audit of the licensee under an approved audit program within the 3
preceding 2 years. 4
of proposed audit program 5
`Notice
`50B.(1) At least 14 days, but not more than 28 days, before an approved 6
audit program starts, the authority must give notice of the program. 7
`(2) The notice must be published in the gazette, and may be published in 8
any other publication the authority considers appropriate. 9
`(3) The notice must state the following-- 10
(a) the purpose of the approved audit program; 11
(b) when the program starts; 12
(c) the period over which the program is to be carried out; 13
(d) the objective criteria for selecting licensees who are to be the 14
subject of audit; 15
(e) if the licensees to be audited are to be selected from licensees 16
holding licences of a particular class, a description of the class; 17
(f) how licensees selected for audit under the program will be 18
advised they have been selected; 19
(g) the obligations to be complied with by licensees selected for audit 20
under the program. 21
of financial information under approved audit program or 22
`Supply
for other reason 23
`50C.(1) This section applies to a licensee if-- 24
(a) the licensee is selected to be audited under an approved audit 25
program; or 26
(b) the authority is satisfied, because of information received by the 27
authority, there are reasonable grounds for concern that the 28
s 25 23 s 25
Queensland Building Services Authority
Amendment
licensee does not satisfy the relevant financial requirements stated 1
in the board's policies. 2
`(2) The authority may give written notice to the licensee requiring the 3
licensee to give the authority copies of, or access to, the financial records 4
described in the notice. 5
`(3) The financial records described in the written notice must be only the 6
financial records of the licensee the authority reasonably requires for 7
deciding whether the licensee satisfies the relevant financial requirements 8
stated in the board's policies. 9
`(4) The licensee must comply with the written notice within 21 days 10
after the licensee receives the written notice, unless the licensee has a 11
reasonable excuse. 12
Maximum penalty--100 penalty units. 13
`(5) Also, if the licensee does not comply with the written notice within 14
21 days after the licensee receives it, the licensee is taken, for section 48(h), 15
to have contravened a condition imposed under section 36 on the licensee's 16
licence.'. 17
of s 51 (False representation) 18
Replacement
Clause 25. Section 51-- 19
omit, insert-- 20
use of licence card, certificate or number 21
`Improper
`51.(1) A licensed contractor must not allow another person to make use 22
of the licensed contractor's licence if the licensed contractor knows, or ought 23
reasonably to know, that the other person intends to make use of the 24
licence-- 25
(a) if the other person is not also a licensed contractor--to pretend to 26
be a licensed contractor; or 27
(b) if the other person is also a licensed contractor--to pretend to be 28
the holder of a contractor's licence authorising carrying out 29
building work the other person is not authorised to carry out. 30
s 25 24 s 25
Queensland Building Services Authority
Amendment
Maximum penalty-- 1
(a) for a first offence--80 penalty units; and 2
(b) for a second offence--120 penalty units; and 3
(c) for a third or subsequent offence--160 penalty units. 4
`(2) A person who is not a licensed contractor must not make use of a 5
licensed contractor's licence to pretend to be a licensed contractor. 6
Maximum penalty-- 7
(a) for a first offence--80 penalty units; and 8
(b) for a second offence--120 penalty units; and 9
(c) for a third or subsequent offence--160 penalty units. 10
`(3) A licensed contractor (the "first contractor") must not make use of 11
another licensed contractor's licence to pretend to be the holder of a 12
contractor's licence authorising carrying out building work the first 13
contractor is not authorised to carry out. 14
Maximum penalty-- 15
(a) for a first offence--80 penalty units; and 16
(b) for a second offence--120 penalty units; and 17
(c) for a third or subsequent offence--160 penalty units. 18
`(4) In this section-- 19
"make use of" a licensed contractor's licence, means make use of the 20
number of the licensed contractor's licence or the licensed contractor's 21
licence card or certificate. 22
offences relating to unlawful carrying out of building work 23
`Other
`51A.(1) A licensed contractor must not help another person to carry out 24
building work if the licensed contractor knows, or ought reasonably to 25
know, that in carrying out the building work the other person is committing 26
an offence against section 42. 27
Maximum penalty-- 28
(a) for a first offence--80 penalty units; and 29
s 26 25 s 26
Queensland Building Services Authority
Amendment
(b) for a second offence--120 penalty units; and 1
(c) for a third or subsequent offence--160 penalty units. 2
`(2) A licensed contractor must not carry out, or undertake to carry out, 3
building work using a name or number other than the licensed contractor's 4
name or number unless the contractor has a reasonable excuse. 5
Maximum penalty-- 6
(a) for a first offence--80 penalty units; and 7
(b) for a second offence--120 penalty units; and 8
(c) for a third or subsequent offence--160 penalty units. 9
`(3) Section 42(2) also applies for this section.'. 10
of new ss 53A and 53B 11
Insertion
Clause 26. After section 53-- 12
insert-- 13
financial requirements at renewal 14
`Satisfying
`53A.(1) The authority must not renew a contractor's licence if the 15
authority is not given information, in a form approved by the board, and 16
within the time allowed under a regulation, about the contractor's continued 17
satisfaction of the relevant financial requirements stated in the board's 18
policies. 19
`(2) The form approved by the board may require some or all of the 20
information to be given by a person suitably qualified and experienced in 21
accountancy. 22
`(3) If the contractor does not give the authority the information 23
mentioned in subsection (1), the authority may, by written notice given to 24
the licensee, suspend the licence. 25
`(4) A suspension imposed under this section ends when the authority is 26
given the information. 27
`(5) If a licence has remained in suspension under this section for more 28
than 3 months, the authority may, by notice to the licensee, cancel the 29
licence. 30
s 27 26 s 27
Queensland Building Services Authority
Amendment
or misleading documents about financial requirements 1
`False
`53B.(1) A person must not give a document to the authority about a 2
contractor's satisfaction of financial requirements stated in the board's 3
policies if-- 4
(a) the person knows the document contains information that is false 5
or misleading; or 6
(b) the document contains information that is false or misleading and 7
the person did not take reasonable steps to make sure that the 8
information was not false or misleading. 9
Maximum penalty--100 penalty units or 2 years imprisonment. 10
`(2) Subsection (1)(a) does not apply to a person who, when giving the 11
document-- 12
(a) informs the authority, to the best of the person's ability, how it is 13
false or misleading; and 14
(b) gives the correct information to the authority if the person has, or 15
can reasonably obtain, the correct information. 16
`(3) A complaint against a person for an offence against subsection (1)(a) 17
is sufficient if it states the document was false or misleading to the person's 18
knowledge.'. 19
of new pt 3A 20
Insertion
Clause 27. After section 56-- 21
insert-- 22
`PART 3A--EXCLUDED AND PERMITTED 23
INDIVIDUALS AND EXCLUDED COMPANIES 24
`Division 1--Preliminary 25
for pt 3A 26
`Definitions
`56AA. In this part-- 27
s 27 27 s 27
Queensland Building Services Authority
Amendment
"excluded company" see section 56AC(7). 1
"excluded individual", for a relevant event, see section 56AC(3) and (4). 2
"influential person", for a company, means an individual, other than a 3
director or secretary of the company, who is in a position to control or 4
substantially influence the conduct of the company's affairs, including, 5
for example, a shareholder with a significant shareholding, a financier 6
or a senior employee. 7
"permitted individual", for a relevant event, means an individual who, 8
under this part, is categorised as a permitted individual for the relevant 9
event. 10
"relevant bankruptcy event" see section 56AC(1)(a). 11
"relevant company event" see section 56AC(2)(b). 12
"relevant event" means a relevant bankruptcy event or a relevant company 13
event. 14
of pt 3A 15
`Operation
`56AB. This part has effect despite anything in part 3. 16
individuals and excluded companies 17
`Excluded
`56AC.(1) This section applies to an individual if-- 18
(a) after the commencement of this section, the individual takes 19
advantage of the laws of bankruptcy or becomes bankrupt 20
("relevant bankruptcy event"); and 21
(b) 5 years have not elapsed since the relevant bankruptcy event 22
happened. 23
`(2) This section also applies to an individual if-- 24
(a) after the commencement of this section, a company, for the 25
benefit of a creditor-- 26
(i) has a provisional liquidator, liquidator, administrator or 27
controller appointed; or 28
(ii) is wound up, or is ordered to be wound up; and 29
s 27 28 s 27
Queensland Building Services Authority
Amendment
(b) 5 years have not elapsed since the event mentioned in 1
paragraph (a)(i) or (ii) ("relevant company event") happened; 2
and 3
(c) the individual-- 4
(i) was, when the relevant company event happened, a director 5
or secretary of, or an influential person for, the company; or 6
(ii) was, at any time after the commencement of this section and 7
within the period of 1 year immediately before the relevant 8
company event happened, a director or secretary of, or an 9
influential person for, the company. 10
`(3) If this section applies to an individual because of subsection (1), the 11
individual is an "excluded individual" for the relevant bankruptcy event. 12
`(4) If this section applies to an individual because of subsection (2), the 13
individual is an "excluded individual" for the relevant company event. 14
`(5) An excluded individual for a relevant bankruptcy event (the "first 15
event") does not also become an excluded individual for another relevant 16
bankruptcy event (the "other event") if the first event and the other event 17
are both consequences flowing from what is, in substance, the one set of 18
circumstances applying to the individual. 19
`(6) An excluded individual for a relevant company event (the "first 20
event") does not also become an excluded individual for another relevant 21
company event (the "other event") if the first event and the other event are 22
both consequences flowing from what is, in substance, the one set of 23
circumstances applying to the company. 24
`(7) A company is an "excluded company" if an individual who is a 25
director or secretary of, or an influential person for, the company is an 26
excluded individual for a relevant event. 27
2--Categorisation as permitted individual 28
`Division
a permitted individual 29
`Becoming
`56AD.(1) An individual may apply to the authority to be categorised as 30
a permitted individual for a relevant event if the individual has been advised 31
s 27 29 s 27
Queensland Building Services Authority
Amendment
by the authority, or has otherwise been made aware, that the authority 1
considers the individual to be an excluded individual for the relevant event. 2
`(2) However, if as a result of the application the individual is not 3
categorised as a permitted individual for the relevant event, the individual 4
may not, while the individual is an excluded individual for the relevant 5
event, again apply to be categorised as a permitted individual for the relevant 6
event. 7
`(3) If the individual applies, the application must include the reasons 8
why the authority should categorise the individual as a permitted individual 9
for the relevant event. 10
`(4) If the individual is a director or secretary of, or influential person for, 11
a company that is a licensee, the company is taken to be a party to the 12
application, and may make submissions to the authority about the 13
application. 14
`(5) The authority must give its decision on the categorisation within 15
28 days, or a longer period agreed between the individual and the authority. 16
`(6) If the authority does not give its decision within the time required 17
under subsection (5), the authority is taken, for section 98,2 to have refused 18
to categorise the individual as a permitted individual for the relevant event. 19
`(7) Nothing in subsection (6) stops the authority, after the time required 20
under subsection (5) has elapsed, from confirming the authority's refusal to 21
categorise the individual as a permitted individual for the relevant event. 22
`(8) The authority may categorise the individual as a permitted individual 23
for the relevant event only if the authority is satisfied, on the basis of the 24
application, that the individual took all reasonable steps to avoid the coming 25
into existence of the circumstances that resulted in the happening of the 26
relevant event. 27
`(9) If an individual is categorised as a permitted individual for a relevant 28
event, the individual is taken not to be an excluded individual for the relevant 29
event. 30
2 Section 98 (Reviewable decisions)
s 27 30 s 27
Queensland Building Services Authority
Amendment
`Division 3--Licence exclusion and cancellation 1
from contractor's licence 2
`Exclusion
`56AE. The authority must not grant a person a contractor's licence if the 3
person is-- 4
(a) an excluded individual for a relevant event; or 5
(b) an excluded company. 6
if licensee is excluded individual 7
`Procedure
`56AF.(1) This section applies if the authority considers that an 8
individual who is a licensee is an excluded individual for a relevant event. 9
`(2) The authority must give the individual a written notice identifying the 10
relevant event and stating the following-- 11
(a) why the authority considers the individual is an excluded 12
individual for the relevant event; 13
(b) the individual may apply to the authority to be categorised as a 14
permitted individual for the relevant event if the individual has not 15
already done so; 16
(c) the authority must cancel the licence if-- 17
(i) the individual has not already applied to be categorised as a 18
permitted individual for the relevant event, and the individual 19
does not apply for the categorisation within 28 days after the 20
authority gives the individual the written notice; or 21
(ii) both of the following apply-- 22
(A) the individual has already applied to be categorised as a 23
permitted individual for the relevant event, or the 24
individual applies for the categorisation within the 25
28 days mentioned in the subparagraph (i); 26
(B) the authority refuses the application. 27
`(3) The authority must cancel the individual's licence by written notice 28
given to the individual if-- 29
s 27 31 s 27
Queensland Building Services Authority
Amendment
(a) the individual has not already applied to be categorised as a 1
permitted individual for the relevant event, and the individual does 2
not apply for the categorisation within 28 days after the authority 3
gives the individual the written notice under subsection (2); or 4
(b) the individual has already applied to be categorised as a permitted 5
individual for the relevant event, or the individual applies for the 6
categorisation within the 28 days mentioned in paragraph (a), 7
but-- 8
(i) the authority refuses the application; and 9
(ii) either of the following applies-- 10
(A) the period for applying for a review of the decision to 11
refuse has ended and no application for review has been 12
made; 13
(B) an application for review has been made and the 14
authority's decision is confirmed, or the application is 15
not proceeded with. 16
`(4) Section 49 does not apply to a cancellation under subsection (3). 17
if licensee is excluded company 18
`Procedure
`56AG.(1) This section applies if the authority considers that a company 19
that is a licensee is an excluded company. 20
`(2) The authority must give the company a written notice stating the 21
following-- 22
(a) particulars identifying the individual (the "relevant individual") 23
who is a director or secretary of, or an influential person for, the 24
company and who is an excluded individual for a relevant event; 25
(b) particulars identifying the relevant event; 26
(c) within 28 days after the authority gives the company the written 27
notice, the relevant individual must-- 28
(i) stop being a director, secretary or influential person; or 29
(ii) if the individual is eligible to do so but has not already done 30
so, apply to the authority to be categorised as a permitted 31
s 27 32 s 27
Queensland Building Services Authority
Amendment
individual for the relevant event; 1
(d) the authority must cancel the licence if-- 2
(i) within the 28 days mentioned in paragraph (c), the relevant 3
individual-- 4
(A) does not stop being a director, secretary or influential 5
person; or 6
(B) if the relevant individual is eligible to do so but has not 7
already done so, does not apply to be categorised as a 8
permitted individual for the relevant event; or 9
(ii) the relevant individual has already applied to be categorised 10
as a permitted individual for the relevant event, or the 11
relevant individual applies for the categorisation within the 12
28 days mentioned in paragraph (c), but the authority refuses 13
the application and the relevant individual does not stop 14
being a director, secretary or influential person; or 15
(iii) the relevant individual is not eligible to apply to the authority 16
to be categorised as a permitted individual for the relevant 17
event and the relevant individual does not, within the 28 days 18
mentioned in paragraph (c), stop being a director, secretary 19
or influential person. 20
`(3) The authority must cancel the company's licence by written notice 21
given to the company if, within the 28 days mentioned in subsection (2)(c), 22
the relevant individual-- 23
(a) does not stop being a director or secretary of, or an influential 24
person for, the company; and 25
(b) if the relevant individual is eligible to do so but has not already 26
done so, does not apply to be categorised as a permitted individual 27
for the relevant event. 28
`(4) The authority must also cancel the company's licence by written 29
notice given to the company if all of the following apply-- 30
(a) the relevant individual has already applied to be categorised as a 31
permitted individual for the relevant event, or the relevant 32
individual applies for the categorisation within the 28 days 33
s 27 33 s 27
Queensland Building Services Authority
Amendment
mentioned in subsection (2)(c); 1
(b) the authority refuses the application and the relevant individual 2
does not stop being a director, secretary or influential person; 3
(c) either-- 4
(i) the period for applying for a review of the decision to refuse 5
has ended and no application for review has been made; or 6
(ii) an application for review has been made and the authority's 7
decision is confirmed, or the application is not proceeded 8
with. 9
`(5) The authority must also cancel the company's licence by written 10
notice given to the company if the relevant individual is not eligible to apply 11
to the authority to be categorised as a permitted individual for the relevant 12
event and the relevant individual does not, within the 28 days mentioned in 13
subsection (2)(c), stop being a director, secretary or influential person. 14
`(6) Section 49 does not apply to a cancellation under subsection (3). 15
`Review by tribunal of authority's opinion 16
`56AH.(1) If the authority considers under section 56AF or 56AG (the 17
"relevant section") that a person is an excluded individual or excluded 18
company, or that an individual is still a director or secretary of, or an 19
influential person for, a company, the authority's decision is subject to 20
review under section 98. 21
`(2) If a person applies for a review of the decision, the application for 22
review does not affect anything already done or in force under the relevant 23
section, but periods of time mentioned in the relevant section are taken to 24
stop running until the review is finished.'. 25
s 28 34 s 28
Queensland Building Services Authority
Amendment
of new pt 4A 1
Insertion
Clause 28. After section 67-- 2
insert-- 3
ART 4A--BUILDING CONTRACTS OTHER THAN 4
`P
DOMESTIC BUILDING CONTRACTS 5
`Division 1--Preliminary 6
for pt 4A 7
`Definitions
`67A. In this part-- 8
"approved security provider" means a financial institution that is an 9
approved security provider under the Financial Management Standard 10
1997. 11
"building contract" means a contract or other arrangement, other than a 12
domestic building contract, for carrying out building work in 13
Queensland. 14
"carry out building work" means-- 15
(a) carry out building work personally; or 16
(b) directly or indirectly, cause building work to be carried out; or 17
(c) provide advisory, administrative, management or supervisory 18
services for carrying out building work. 19
"commercial building contract" means a building contract that is not a 20
construction management trade contract or a subcontract. 21
"construction management trade contract" means a building contract 22
described in section 67B. 23
"contracted party", for a building contract, means the party to the contract 24
who is to carry out the building work the subject of the contract. 25
"contracting party", for a building contract, means the party to the contract 26
for whom the building work the subject of the contract is to be carried 27
out. 28
s 28 35 s 28
Queensland Building Services Authority
Amendment
"contract price", for a building contract, means the amount payable under 1
the contract for carrying out the building work the subject of the 2
contract, including, if the contract has been the subject of a variation, 3
the contract as varied. 4
"principal" means a person who is the contracting party for a building 5
contract and who-- 6
(a) is not a building contractor; or 7
(b) is a building contractor, but did not enter into the building contract 8
in the course of carrying on business as a building contractor. 9
"progress payment", for a building contract, means the payment of an 10
amount that is a part of the contract price for the contract, other than an 11
amount that is, or is in the nature of, a deposit under the contract. 12
"retention amount", for a building contract, means an amount described in 13
section 67C. 14
"security", for a building contract, means something-- 15
(a) given to, or for the direct or indirect benefit of, the contracting 16
party for the contract by or for the contracted party for the 17
contract; and 18
(b) intended to secure, wholly or partly, the performance of the 19
contract; and 20
(c) in the form of either, or a combination of both, of the following-- 21
(i) an amount, other than an amount held as a retention amount 22
for the contract; 23
(ii) 1 or more valuable instruments, whether or not exchanged 24
for, or held instead of, a retention amount for the contract. 25
"subcontract" means a building contract described in section 67D. 26
"valuable instrument" means any of the following-- 27
(a) a banker's undertaking; 28
(b) a bond; 29
(c) inscribed stock; 30
(d) a guarantee policy; 31
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(e) an interest bearing deposit. 1
"variation", of a building contract, means an addition to, or an omission 2
from, the building work the subject of the contract. 3
"written form", for a building contract or the variation of a building 4
contract, means in handwritten or typewritten form, or in a 5
combination of handwritten and typewritten forms. 6
of "construction management trade contract" in pt 4A 7
`Meaning
`67B.(1) For this part, a building contract is a "construction 8
management trade contract" if-- 9
(a) the contracting party for the building contract is a principal; and 10
(b) the contracted party for the building contract is the holder of a 11
licence, other than a licence identified under a regulation as a 12
general building licence; and 13
(c) the building work the subject of the building contract is part of a 14
wider project of building work (the "project") involving the 15
principal in entering into 1 or more other building contracts, also 16
as a principal, for the carrying out of other building work that is 17
also part of the project. 18
`(2) For deciding whether a principal has entered into a building contract, 19
it does not matter if the building contract was entered into on behalf of the 20
principal, including, for example, by a person described in the contract as a 21
construction manager. 22
of "retention amount" in pt 4A 23
`Meaning
`67C. For this part, an amount is a "retention amount" for a building 24
contract if-- 25
(a) the amount is payable as part of the contract price under the 26
building contract, but, under the contract, may be withheld from 27
payment to the contracted party for the building contract-- 28
(i) during the progress of the building work the subject of the 29
contract; or 30
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Amendment
(ii) for a period (a "maintenance period") after the completion 1
of the building work; or 2
(iii) both during the progress of the building work and for a 3
maintenance period; and 4
(b) the purpose of withholding the amount is to give financial 5
protection to the contracting party in relation to the need to correct 6
defects in the building work, or otherwise to secure, wholly or 7
partly, the performance of the contract. 8
of "subcontract" in pt 4A 9
`Meaning
`67D. For this part, a building contract is a "subcontract" if-- 10
(a) both the contracting party and the contracted party for the contract 11
are building contractors; and 12
(b) for the contract, the contracted party is a subcontractor for the 13
contracting party; and 14
(c) the building work the subject of the contract is the whole or a part 15
of building work the subject of-- 16
(i) another building contract, under which the contracting party 17
mentioned in paragraphs (a) and (b) is the contracted party; 18
or 19
(ii) a domestic building contract between the contracting party 20
mentioned in paragraphs (a) and (b) and a consumer. 21
of pt 4A 22
`Operation
`67E.(1) Subject to any provision of this part that expressly provides that 23
a building contract, or a provision of a building contract, is void, this part 24
does not have effect to make void or voidable a building contract, or a 25
provision of a building contract, even if-- 26
(a) in entering into the building contract, or the building contract 27
containing the provision, a party to the building contract commits 28
an offence against this part; or 29
(b) the building contract or the provision of the building contract is 30
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Amendment
inconsistent with a condition to which the building contract is 1
subject under this part. 2
`(2) However, if a building contract, or a provision of a building contract, 3
is inconsistent with a provision (the "Act provision") of this part applying 4
to the building contract, the building contract, or the provision of the 5
building contract, has effect only to the extent it is not inconsistent with the 6
Act provision. 7
`(3) Without limiting subsection (2), a building contract is unenforceable 8
against the contracted party for the contract to the extent that the contract 9
provides for retention amounts or security in a way that is inconsistent with 10
a condition to which the contract is subject under division 2. 11
`(4) This part-- 12
(a) has effect in relation to a building contract despite anything in the 13
building contract; and 14
(b) applies to a building contract even if-- 15
(i) the contract was entered into outside Queensland; or 16
(ii) the parties to the contract have agreed that the law of 17
Queensland does not apply to the contract or to a provision 18
of the contract. 19
`Division 2--All building contracts 20
forms of contract 21
`Suggested
`67F. The authority may prepare and publish suggested forms for 22
building contracts. 23
contracts to be in writing 24
`Building
`67G.(1) A building contractor commits an offence if-- 25
(a) the building contractor enters into a building contract, whether as 26
the contracting party or the contracted party for the contract; and 27
(b) the building contract is not put into written form-- 28
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(i) if the reasonable cost of the building work the subject of the 1
contract is more than $10 000--before carrying out the 2
building work is started; or 3
(ii) if the reasonable cost of the building work the subject of the 4
contract is $10 000 or less--before carrying out the building 5
work is finished. 6
Maximum penalty-- 7
(a) for a first offence--40 penalty units; and 8
(b) for a second offence--60 penalty units; and 9
(c) for a third or subsequent offence--80 penalty units. 10
`(2) A building contractor commits an offence if-- 11
(a) the building contractor enters into a building contract, whether as 12
the contracting party or the contracted party for the contract; and 13
(b) the reasonable cost of the building work the subject of the 14
building contract is $10 000 or less; and 15
(c) after the building contract is entered into but before the building 16
contract has been put into written form, the reasonable cost of the 17
building work the subject of the building contract becomes more 18
than $10 000 because of a variation of the building contract, 19
whether or not the variation is the first variation of the building 20
contract; and 21
(d) the building contract, incorporating all variations, is not put into 22
written form-- 23
(i) if no building work has been carried out under the 24
contract--before carrying out building work under the 25
contract is started; or 26
(ii) otherwise--before there is further carrying out of building 27
work under the contract. 28
Maximum penalty-- 29
(a) for a first offence--40 penalty units; and 30
(b) for a second offence--60 penalty units; and 31
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Amendment
(c) for a third or subsequent offence--80 penalty units. 1
`(3) A building contractor commits an offence if-- 2
(a) the building contractor enters into a building contract, whether as 3
the contracting party or the contracted party for the contract; and 4
(b) the building contract is put into written form; and 5
(c) the building contract, in written form, does not comply with the 6
formal requirements for a building contract stated in 7
subsection (4). 8
Maximum penalty-- 9
(a) for a first offence--40 penalty units; and 10
(b) for a second offence--60 penalty units; and 11
(c) for a third or subsequent offence--80 penalty units. 12
`(4) A building contract in written form complies with the formal 13
requirements for a building contract if the contract states the following-- 14
(a) the scope of the building work the subject of the contract; 15
(b) when the building work is to be completed; 16
(c) the amount to be paid for carrying out the building work or, if 17
appropriate, how the amount to be paid for carrying out the 18
building work is to be worked out; 19
(d) the parties' agreement about retention amounts and securities to 20
be held; 21
(e) the name of the building contractor who is the contracted party for 22
the building contract; 23
(f) the licence number of the building contractor mentioned in 24
paragraph (e), as it appears on the building contractor's licence 25
card; 26
(g) the address of the land where the building work is to be carried 27
out. 28
`(5) This section does not apply to a building contractor who enters into a 29
building contract as a principal. 30
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Amendment
`(6) If, in contravention of subsection (1) or (2), a building contract is not 1
put into written form, a building contractor who is a party to the contract is 2
taken not to commit an offence against the provision if-- 3
(a) building work the subject of the contract must be carried out 4
urgently; and 5
(b) it is not reasonably practicable to enter into a written contract in 6
the particular circumstances. 7
8
Example--
9
A cyclone has caused considerable damage at a remote community, repairs are
10
urgently needed, the parties to the building contract are not both present at the
11
community and communications failure prevents transmission of written material
12
between the parties.
contract variations 13
`Agreed
`67H.(1) A building contractor commits an offence if-- 14
(a) the building contractor is the contracting party or contracted party 15
for a building contract; and 16
(b) the building contractor agrees to a variation of the building 17
contract; and 18
(c) the variation is not put into written form and signed by the parties 19
to it-- 20
(i) if the building contract has been put into written form, and 21
the variation provides only for the omission of some of the 22
building work from the building contract--within the 23
shortest practicable time; or 24
(ii) if the building contract has been put into written form but 25
subparagraph (i) does not apply--before building work the 26
subject of the variation is carried out; or 27
(iii) if the building contract has not yet been put into written 28
form--when the building contract is put into written form 29
and signed by the parties to the building contract. 30
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Amendment
Maximum penalty-- 1
(a) for a first offence--40 penalty units; and 2
(b) for a second offence--60 penalty units; and 3
(c) for a third or subsequent offence--80 penalty units. 4
`(2) A building contractor commits an offence if-- 5
(a) the building contractor agrees to a variation of a building contract; 6
and 7
(b) the variation is put into written form; and 8
(c) the variation, in written form, does not comply with the formal 9
requirements for a variation stated in subsection (3). 10
Maximum penalty-- 11
(a) for a first offence--40 penalty units; and 12
(b) for a second offence--60 penalty units; and 13
(c) for a third or subsequent offence--80 penalty units. 14
`(3) A variation in written form of a building contract complies with the 15
formal requirements for a variation if the variation-- 16
(a) states the scope of the building work the subject of the variation; 17
and 18
(b) states the change of the contract price for the building contract 19
because of the variation, or the way the parties to the building 20
contract are to work out the change of the contract price; and 21
(c) is to the effect that any addition of building work must be allowed 22
for in an increase in the first progress payment to be made after 23
any part or the whole of the addition is carried out. 24
`(4) This section does not apply to a building contractor who enters into a 25
variation of a building contract if the building contractor is a party to the 26
building contract as a principal. 27
`(5) Despite subsection (3)(b), it is not necessary for the variation to state 28
the change of the contract price because of the variation or the way the 29
parties are to work out the change of the contract price if a provision of the 30
building contract provides for how the change is to be worked out. 31
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Amendment
`(6) If, in contravention of subsection (1) or (2), a variation of a building 1
contract is not put into written form, a building contractor who is a party to 2
the contract is taken not to commit an offence against the provision if-- 3
(a) building work the subject of the variation must be carried out 4
urgently; and 5
(b) it is not reasonably practicable to enter into a written variation in 6
the particular circumstances. 7
8
Example--
9
Building work is in progress at a remote community, a cyclone causes
10
considerable damage at the community, repairs are urgently needed, the parties to
11
the building contract are not both present at the community and communications
12
failure prevents transmission of written material between the parties.
given under building contracts 13
`Directions
`67I.(1) This section applies if under a building contract the contracting 14
party for the contract, or another person authorised under the contract, may, 15
without the agreement of the contracted party for the contract, give a 16
direction to the contracted party. 17
`(2) Unless the building contract otherwise provides, a direction may 18
initially be given other than in writing. 19
`(3) However, if a direction is given other than in writing, the contracted 20
party-- 21
(a) may ask for the direction to be given in writing; and 22
(b) is not required to comply with the direction until it is given in 23
writing. 24
`(4) If a direction is given other than in writing, the contracting party 25
commits an offence if the direction is not given to the contracted party in 26
writing within 3 business days after it was given other than in writing. 27
Maximum penalty-- 28
(a) for a first offence--40 penalty units; and 29
(b) for a second offence--60 penalty units; and 30
(c) for a third or subsequent offence--80 penalty units. 31
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Amendment
`(5) In this section-- 1
"direction" includes a direction for a variation of a building contract. 2
under building contracts 3
`Set-offs
`67J.(1) The contracting party for a building contract may reduce an 4
amount payable under the contract by an amount owed under the contract, 5
or use a security for the building contract, wholly or partly, to obtain an 6
amount owed under the contract, only if-- 7
(a) the reduction of the amount payable or the use of the security is 8
permitted under the contract; and 9
(b) the contracting party has given-- 10
(i) written notice (the "first notice") to the contracted party for 11
the contract advising of the proposed reduction or use and, if 12
the amount owed can be quantified when the first notice is 13
given, of the amount owed; and 14
(ii) if the amount owed can not be quantified when the first 15
notice is given, a further written notice (the "second notice") 16
to the contracted party advising of the amount owed. 17
`(2) The first notice must be given within 28 days after the contracting 18
party becomes aware, or ought reasonably to have become aware, of the 19
contracting party's right to obtain the amount owed. 20
`(3) If the second notice is required to be given, it must be given within 21
3 business days after the contracting party becomes able to quantify the 22
amount owed. 23
`(4) If, because of subsections (1) and (2) or (1), (2) and (3), the 24
contracting party is stopped from reducing an amount payable under a 25
building contract by an amount owed under the contract, or from using a 26
security for a building contract to obtain an amount owed under the contract, 27
the contracting party for the contract is not stopped from recovering the 28
amount owed in another way. 29
`(5) In this section-- 30
"amount owed", under a building contract, means an amount that, under 31
the contract, and subject to its being quantified, is owed by the 32
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Amendment
contracted party for the contract to the contracting party for the contract 1
because of circumstances associated with the contracted party's 2
performance of the contract. 3
"amount payable", under a building contract, means an amount that, under 4
the building contract, is payable by the contracting party for the contract 5
to the contracted party for the contract, including any amount payable 6
to the contracted party from a retention amount for the contract. 7
for retention amounts and securities for building contracts 8
`Limits
other than subcontracts 9
`67K.(1) This section applies to a building contract if the contracting 10
party under the contract is a principal. 11
`(2) The building contract is subject to a condition that at any time before, 12
under the contract, practical completion of building work is reached, the total 13
value of the following is to be not more than 5% of the contract price for the 14
contract-- 15
(a) all retention amounts for the contract that are being withheld; 16
(b) all securities for the contract given and still held. 17
`(3) Subsection (2) does not apply to retention amounts or securities to 18
the extent that the retention amounts or securities are for the financial 19
protection of the contracting party, having regard to amounts paid by the 20
contracting party that relate to something that has not yet been installed in 21
accordance with the requirements of the contract. 22
`(4) The building contract is not subject to the condition mentioned in 23
subsection (2) if-- 24
(a) the contract-- 25
(i) is in written form; and 26
(ii) explains the condition; and 27
(iii) expressly provides that the contract is not subject to the 28
condition; and 29
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Amendment
(b) the provision of the contract that expressly provides in the way 1
mentioned in paragraph (a)(iii) is initialled by the parties to the 2
contract. 3
for retention amounts and securities for subcontracts 4
`Limits
`67L.(1) A subcontract is subject to a condition that, at any time before, 5
under the contract, practical completion of building work is reached, the total 6
value of the following is to be not more than 5% of the contract price for the 7
subcontract-- 8
(a) all retention amounts for the subcontract that are being withheld; 9
(b) all securities for the subcontract given and still held. 10
`(2) Subsection (1) does not apply to retention amounts or securities to 11
the extent that the retention amounts or securities are for the financial 12
protection of the contracting party, having regard to amounts paid by the 13
contracting party that relate to something that has not yet been installed in 14
accordance with the requirements of the contract. 15
on deductions for retention amounts 16
`Limits
`67M.(1) This section applies if-- 17
(a) an amount (the "relevant amount") is payable by the contracting 18
party for a building contract to the contracted party for the 19
building contract; and 20
(b) the relevant amount relates to carrying out building work under 21
the contract; and 22
(c) the relevant amount, except for a retention amount for the building 23
contract that is withheld, is paid to the contracted party. 24
`(2) The building contract is subject to a condition that the retention 25
amount withheld is to be not more than 10% of the relevant amount. 26
s 28 47 s 28
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Amendment
for retention amounts and securities for building contracts 1
`Limits
after practical completion 2
`67N.(1) A building contract is subject to a condition that, at any time 3
after, under the contract, practical completion of building work is reached, 4
the total value of the following is to be not more than 2.5% of the contract 5
price for the contract-- 6
(a) all retention amounts for the contract that are being withheld; 7
(b) all securities for the contract given and still held. 8
`(2) Subsection (1) does not apply to retention amounts or securities to 9
the extent that the retention amounts or securities do not relate to the need to 10
correct defects, identified in the defects liability period under the contract, in 11
the building work under the contract. 12
uspension of works 13
`S
`67O.(1) This section applies if-- 14
(a) the contracting party for a building contract has not complied with 15
an order of a court or of the tribunal given in favour of the 16
contracted party for the contract in relation to an issue arising 17
under the contract; or 18
(b) all of the following apply-- 19
(i) an amount is required to be paid to the contracted party for a 20
building contract by a particular time; 21
(ii) the full amount is not paid, other than solely because of the 22
retention of an amount lawfully permitted to be retained; 23
(iii) the requirement to pay the amount is not in dispute between 24
the contracting party and the contracted party. 25
`(2) The contracted party may give the contracting party a written notice 26
stating-- 27
(a) details of the circumstance mentioned in subsection (1)(a), or of 28
the circumstances mentioned in subsection (1)(b)(i) to (iii); and 29
(b) that the contracted party intends to suspend building work the 30
subject of the building contract if the order mentioned in 31
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Amendment
subsection (1)(a) is not complied with, or if the amount 1
mentioned in subsection (1)(b) is not paid, within the time stated 2
in the written notice. 3
`(3) The time stated in the written notice must be not less than 7 days 4
after the written notice is given. 5
`(4) If the order is not complied with, or the amount is not paid, within 6
the time stated in the written notice, the contracted party may-- 7
(a) give the contracting party a further written notice that the 8
contracted party is suspending the building work immediately; 9
and 10
(b) suspend the building work immediately the further written notice 11
is given. 12
`(5) If the contracted party suspends building work under subsection (4), 13
the contracted party-- 14
(a) is not in breach of the building contract; and 15
(b) keeps the contracted party's rights under the contract, including 16
any right to terminate the contract; and 17
(c) may at any time lift the suspension, even if the order has not been 18
complied with or the amount has not been paid. 19
`(6) Subsection (7) applies if-- 20
(a) the order is complied with, or the amount is paid; and 21
(b) the suspension is still in force; and 22
(c) the contracting party gives written notice to the contracted party-- 23
(i) advising the order has been complied with or the amount has 24
been paid; and 25
(ii) requiring the contracted party to recommence the building 26
work under the contract. 27
`(7) The building contract is subject to a condition that the contracted 28
party must recommence carrying out building work under the contract 29
within 7 days after the contracted party receives the written notice mentioned 30
in subsection (6)(c), or at a later time agreed to between the contracting party 31
and the contracted party. 32
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Amendment
progress payments 1
`Late
`67P.(1) This section applies if-- 2
(a) the contracting party for a building contract is required to pay an 3
amount (the "progress amount") to the contracted party for the 4
building contract; and 5
(b) the progress amount is payable as the whole or a part of a 6
progress payment; and 7
(c) the time (the "payment time") by which the progress amount is 8
required to be paid has passed, and the progress amount, or a part 9
of the progress amount, has not been paid. 10
`(2) For the period for which the progress amount, or the part of the 11
progress amount, is still unpaid after the payment time, the contracting party 12
is also required to pay the contracted party interest at the penalty rate, as 13
applying from time to time, and worked out on a daily basis, on the 14
progress amount or the part of the progress amount. 15
`(3) In this section-- 16
"penalty rate" means-- 17
(a) the percentage made up of the sum of the following 18
percentages-- 19
(i) 10%; 20
(ii) the rate comprising the annual rate, as published from time 21
to time by the Reserve Bank of Australia, for 90 day bills; or 22
(b) if the building contract provides for a higher rate of interest than 23
the rate worked out under paragraph (a)--the higher rate. 24
if or when paid clauses void 25
`Pay
`67Q. A provision of a building contract is void to the extent it provides 26
that an amount becomes payable to the contracted party for the building 27
contract only if the contracting party for the building contract is first paid an 28
amount by someone else. 29
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Amendment
3--Construction management trade contracts and 1
`Division
subcontracts 2
of div 3 3
`Application
`67R. This division applies to a building contract if the building contract 4
is a construction management trade contract or a subcontract. 5
of security instead of retention amount or security in 6
`Lodgement
money form 7
`67S.(1) This section applies if the contracted party for a building contract 8
is under a lawful obligation to lodge a security in the form of an amount of 9
money (the "relevant amount"). 10
`(2) The contracted party complies with the obligation if-- 11
(a) the contracted party lodges with the contracting party a security, in 12
the form of a government bond or a valuable instrument from an 13
approved security provider, to take the place of the security in the 14
form of money; and 15
(b) the value of the security is equal to the relevant amount. 16
`(3) If the contracted party lodges a security in the form of a valuable 17
instrument from an entity that is an approved security provider, and the 18
entity stops being an approved security provider, the contracted party must, 19
if asked by the contracting party, lodge a further security, in a form 20
mentioned in subsection (2)(a), to take the place of the security in the form 21
of money. 22
of security to replace retention amount or security in 23
`Lodgement
money form 24
`67T.(1) This section applies if, under a building contract, the contracting 25
party is holding-- 26
(a) an amount (the "relevant amount") as a retention amount; or 27
(b) a security in the form of an amount of money (also the "relevant 28
amount"). 29
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Amendment
`(2) The building contract is subject to a condition that-- 1
(a) the contracted party may lodge with the contracting party a 2
security, in the form of a government bond or a valuable 3
instrument from an approved security provider, to take the place 4
of the retention amount or of the security in the form of money; 5
and 6
(b) on the lodging of the security, the contracting party must pay the 7
contracted party the relevant amount. 8
`(3) However, subsection (2) applies only if the value of the security 9
lodged is equal to the relevant amount. 10
`(4) If the contracted party lodges a security in the form of a valuable 11
instrument from an entity that is an approved security provider, and the 12
entity stops being an approved security provider, the contracted party must, 13
if asked by the contracting party, lodge a further security, in a form 14
mentioned in subsection (2)(a), to take the place of the retention amount or 15
of the security in the form of money. 16
conditions for prompt payment 17
`Implied
`67U.(1) A building contract is subject to the conditions stated in 18
subsections (2) to (8). 19
`(2) From when the building work under the contract is started until 20
when, under the contract, practical completion of building work is reached, 21
the contracted party for the contract has the right to receive progress 22
payments for carrying out building work under the contract. 23
`(3) The period between when the building work under the contract starts 24
and when the contracted party has the right to submit a claim under the 25
contract for the first progress payment must not be more than 1 month. 26
`(4) The period between when the contracted party submits a claim under 27
the contract for a progress payment and when the contracted party has the 28
right to submit a claim under the contract for the next progress payment 29
must not be more than 1 month. 30
`(5) The amount of the first progress payment must be worked out 31
having regard to the amount of building work carried out from when the 32
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Amendment
building work started until when the claim for the first progress payment is 1
made. 2
`(6) The amount of a progress payment (the "current progress 3
payment") other than the first progress payment must be worked out 4
having regard to the amount of building work carried out from when the 5
contracted party first submitted a claim under the contract for the progress 6
payment most recently payable until the contracted party submitted a claim 7
under the contract for the current progress payment. 8
`(7) A progress payment must be made-- 9
(a) within 35 days after the contracted party submits a claim under 10
the contract for its payment; or 11
(b) if a shorter time is agreed under the contract--within the shorter 12
time. 13
`(8) If the contracting party for the contract disputes the payment of a 14
progress payment for which the contracted party has submitted a claim 15
under the contract, the contracting party must, within the time otherwise 16
required for the payment of the whole of the progress payment, pay the 17
contracted party the progress payment to the extent the contracting party's 18
liability to pay the amount is not in dispute. 19
`(9) A building contract is not subject to a condition mentioned in 20
subsections (2) to (8) if-- 21
(a) the contract-- 22
(i) is in written form; and 23
(ii) explains the condition; and 24
(iii) expressly provides that the contract is not subject to the 25
condition; and 26
(b) the provision of the contract that expressly provides in the way 27
mentioned in paragraph (a)(iii) is initialled by the parties to the 28
contract. 29
`(10) Nothing in subsections (1) to (8)-- 30
(a) affects the operation of the Subcontractors' Charges Act 1974 in 31
relation to a building contract; or 32
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Amendment
(b) affects the right of a contracting party for a building contract to 1
claim a set-off for an amount owed to the contracting party by the 2
contracted party for the contract. 3
`Division 4--Warning for construction management trade contracts 4
of not warning that contract is construction management 5
`Offence
trade contract 6
`67V.(1) The contracting party for a construction management trade 7
contract commits an offence if-- 8
(a) the construction management trade contract does not include a 9
warning complying with subsection (2); and 10
(b) the warning is not initialled by the contracted party for the 11
contract. 12
Maximum penalty-- 13
(a) for a first offence--40 penalty units; and 14
(b) for a second offence--60 penalty units; and 15
(c) for a third or subsequent offence--80 penalty units. 16
`(2) The warning-- 17
(a) must be in a form approved by the board; and 18
(b) must be concerned with the possible dangers for the contracted 19
party for the contract of entering into a construction management 20
trade contract rather than a subcontract. 21
5--Commercial building contracts 22
`Division
conditions for prompt payment 23
`Implied
`67W.(1) A commercial building contract is subject to the conditions 24
stated in subsections (2) to (8). 25
`(2) From when the building work under the contract is started until 26
s 28 54 s 28
Queensland Building Services Authority
Amendment
when, under the contract, practical completion is reached, the contracted 1
party for the contract has the right to receive progress payments for carrying 2
out building work under the contract. 3
`(3) The period between when the building work under the contract starts 4
and when the contracted party has the right to submit a claim under the 5
contract for the first progress payment must not be more than 1 month. 6
`(4) The period between when the contracted party submits a claim under 7
the contract for a progress payment and when the contracted party has the 8
right to submit a claim under the contract for the next progress payment 9
must not be more than 1 month. 10
`(5) The amount of the first progress payment must be worked out 11
having regard to the amount of building work carried out from when the 12
building work started until when the claim for the first progress payment is 13
made. 14
`(6) The amount of a progress payment (the "current progress 15
payment") other than the first progress payment must be worked out 16
having regard to the amount of building work carried out from when the 17
contracted party first submitted a claim under the contract for the progress 18
payment most recently payable until the contracted party submitted a claim 19
under the contract for the current progress payment. 20
`(7) A progress payment must be made-- 21
(a) within 21 days after the contracted party submits a claim under 22
the contract for its payment; or 23
(b) if a longer or shorter time is agreed under the contract--within the 24
longer or shorter time. 25
`(8) If the contracting party for the contract disputes the payment of a 26
progress payment for which the contracted party has submitted a claim 27
under the contract, the contracting party must, within the time otherwise 28
required for the payment of the whole of the progress payment, pay the 29
contracted party the progress payment to the extent the contracting party's 30
liability to pay the amount is not in dispute. 31
`(9) A commercial building contract is not subject to a condition 32
mentioned in subsections (2) to (6) and (8) if-- 33
(a) the contract-- 34
s 29 55 s 30
Queensland Building Services Authority
Amendment
(i) is in written form; and 1
(ii) explains the condition; and 2
(iii) expressly provides that the contract is not subject to the 3
condition; and 4
(b) either of the following applies-- 5
(i) before the contract was entered into, the contracted party was 6
notified, in a form approved by the board, that the contract 7
would expressly provide in the way mentioned in 8
paragraph (a)(iii); 9
(ii) the provision of the contract that expressly provides in the 10
way mentioned in paragraph (a)(iii) is initialled by the parties 11
to the contract. 12
`(10) Nothing in subsections (1) to (8) affects the right of a contracting 13
party for a commercial building contract to claim a set-off for an amount 14
owed to the contracting party by the contracted party for the contract.'. 15
of s 68 (Payment of insurance premium) 16
Amendment
Clause 29. Section 68(1), penalty, `20'-- 17
omit, insert-- 18
`40'. 19
of s 69 (Insurance of building work) 20
Amendment
Clause 30. Section 69-- 21
insert-- 22
`(4) The certificate of insurance given to a consumer need not state the 23
terms of the policy of insurance, but a copy of the policy must be given to 24
the consumer when the certificate of insurance is given to the consumer and 25
the certificate of insurance must include a clear reference to the policy. 26
`(5) To remove doubt, it is declared that a policy of insurance under this 27
section has effect according to its terms and a consumer can not avoid the 28
consequences of a breach of a provision of the policy of insurance only 29
s 31 56 s 31
Queensland Building Services Authority
Amendment
because the policy of insurance forms part of a statutory insurance 1
scheme.'. 2
of s 72 (Power to require rectification of building work) 3
Amendment
Clause 31.(1) Section 72(1), `a reasonable'-- 4
omit, insert-- 5
`the'. 6
(2) Section 72(2) to (10)-- 7
renumber as section 72(5) to (13). 8
(3) Section 72-- 9
insert-- 10
`(2) In deciding whether to give a direction under subsection (1), the 11
authority may take into consideration all the circumstances it considers are 12
reasonably relevant, and in particular, is not limited to a consideration of the 13
terms of, including the terms of any warranties included in, the contract for 14
carrying out the building work. 15
`(3) The period stated in the direction must be at least 28 days unless the 16
authority is satisfied that, if the direction is not required to be complied with 17
within a shorter period-- 18
(a) a substantial loss will be incurred by, or a significant hazard will 19
be caused to the health or safety of, a person because of the 20
defective building work; or 21
(b) the defective building work will cause a significant hazard to 22
public safety or the environment generally. 23
`(4) Subject to subsection (3), the period stated in the direction must be a 24
period the authority considers to be appropriate in the circumstances.'. 25
(4) Section 72(11), as renumbered, `subsection (2)(c) and (d)'-- 26
omit, insert-- 27
`subsection (5)(c) and (d)'. 28
(5) Section 72(12) and (13), as renumbered, `subsection (7)'-- 29
s 32 57 s 32
Queensland Building Services Authority
Amendment
omit, insert-- 1
`subsection (10)'. 2
(6) Section 72(12), as renumbered, `subsection (2)(a)'-- 3
omit, insert-- 4
`subsection (5)(a)'. 5
(7) Section 72(13), as renumbered, `subsection (2)(b)'-- 6
omit, insert-- 7
`subsection (5)(b)'. 8
(8) Section 72-- 9
insert-- 10
`(14) The authority is not required to give a direction under this section to 11
a person who carried out building work for the rectification of the building 12
work if the authority is satisfied that, in the circumstances, it would be 13
unfair to the person to give the direction. 14
15
Example for subsection (14)--
16
The authority might decide not to give a direction for the rectification of building
17
work because of the amount payable but unpaid under the contract for carrying out
18
the building work.'.
of s 74 (Tenders for rectification work) 19
Amendment
Clause 32.(1) Section 74(1), from `may call' to `relevant panel'-- 20
omit, insert-- 21
`must seek tenders for carrying out the work'. 22
(2) Section 74(2) and (3)-- 23
renumber as section 74(3) and (7). 24
(3) Section 74-- 25
insert-- 26
`(2) The authority must also seek tenders for carrying out building work 27
if the authority-- 28
s 33 58 s 34
Queensland Building Services Authority
Amendment
(a) is of the opinion that the building work is defective or incomplete; 1
but 2
(b) has decided not to give a direction under section 72 for the 3
rectification of the building work.'. 4
(4) Section 74-- 5
insert-- 6
`(4) Tenders for carrying out the building work must be sought from the 7
number of licensed contractors considered by the authority to be reasonable 8
in the circumstances. 9
`(5) A licensed contractor from whom a tender may be sought must be-- 10
(a) a licensed contractor whose name is included on an appropriate 11
panel; or 12
(b) a licensed contractor whose name is not included on an 13
appropriate panel, if the authority is satisfied it would be in the 14
best interests of the efficient rectification of the building work if 15
the licensed contractor were to provide a tender. 16
`(6) The authority may authorise the person for whom the building work 17
requiring rectification was, or was to be, carried out to act for the authority 18
in seeking the necessary tenders.'. 19
of s 101 (Disciplinary action) 20
Amendment
Clause 33. Section 101(4)(d)(ii), `prescribed financial requirements for the 21
licence'-- 22
omit, insert-- 23
`relevant financial requirements stated in the board's policies'. 24
of new s 109A 25
Insertion
Clause 34. After section 109-- 26
insert-- 27
s 35 59 s 35
Queensland Building Services Authority
Amendment
of documents 1
`Service
`109A.(1) A document may be served under this Act on a licensee by 2
leaving it at, or sending it by post, telex, facsimile or similar facility to, the 3
address of the licensee in the register of licensees kept by the authority. 4
`(2) Subsection (1) does not limit the Acts Interpretation Act 1954, 5
section 39.3'. 6
of new ss 111A-111C 7
Insertion
Clause 35. After section 111-- 8
insert-- 9
for acts or omissions of representatives 10
`Responsibility
`111A.(1) This section applies for-- 11
(a) a proceeding for an offence against this Act; and 12
(b) an inquiry conducted by the tribunal under section 101 to decide 13
whether proper grounds exist for taking disciplinary action under 14
the section. 15
`(2) If it is relevant to prove a person's state of mind about a particular act 16
or omission, it is enough to show-- 17
(a) the act was done or omitted to be done by a representative of the 18
person within the scope of the representative's actual or apparent 19
authority; and 20
(b) the representative had the state of mind. 21
`(3) An act done or omitted to be done for a person by a representative of 22
the person within the scope of the representative's actual or apparent 23
authority is taken to have been done or omitted to be done also by the 24
person, unless the person proves the person could not, by the exercise of 25
reasonable diligence, have prevented the act or omission. 26
`(4) In this section-- 27
"representative" means-- 28
3 Acts Interpretation Act 1954, section 39 (Service of documents)
s 35 60 s 35
Queensland Building Services Authority
Amendment
(a) of a company--an executive officer, employee or agent of the 1
company; or 2
(b) of an individual--an employee or agent of the individual. 3
"state of mind" of a person includes-- 4
(a) the person's knowledge, intention, opinion, belief or purpose; and 5
(b) the person's reasons for the intention, opinion, belief or purpose. 6
officers must ensure company complies with Act 7
`Executive
`111B.(1) The executive officers of a company must ensure the company 8
complies with this Act. 9
`(2) If a company commits an offence against a provision of this Act, 10
each of the company's executive officers also commits an offence, namely, 11
the offence of failing to ensure that the company complies with the 12
provision. 13
Maximum penalty--the penalty for the contravention of the provision by an 14
individual. 15
`(3) Evidence that the company has been convicted of an offence against 16
a provision of this Act is evidence that each of the executive officers 17
committed the offence of failing to ensure that the company complies with 18
the provision. 19
`(4) However, it is a defence for an executive officer to prove-- 20
(a) if the officer was in a position to influence the conduct of the 21
company in relation to the offence--the officer exercised 22
reasonable diligence to ensure the company complied with the 23
provision; or 24
(b) the officer was not in a position to influence the conduct of the 25
company in relation to the offence. 26
of directors for amounts 27
`Liability
`111C.(1) This section applies if-- 28
(a) a company is convicted of an offence against a provision of this 29
s 35 61 s 35
Queensland Building Services Authority
Amendment
Act; and 1
(b) a penalty for the offence is imposed on the company; and 2
(c) the amount of the penalty is not paid within the time required for 3
its payment. 4
`(2) This section also applies if-- 5
(a) under section 101(4), the tribunal finds that proper grounds exist 6
for taking disciplinary action against a company; and 7
(b) an order is made by the tribunal imposing a penalty on the 8
company; and 9
(c) the amount of the penalty is not paid within the time required for 10
its payment. 11
`(3) This section also applies if a company owes the authority an amount 12
because of a payment made by the authority on a claim under the insurance 13
scheme. 14
`(4) If this section applies because of subsection (1), the liability to pay 15
the penalty attaches to-- 16
(a) each individual who was a director of the company when the 17
offence was committed; and 18
(b) each individual who is a director of the company when the penalty 19
is imposed. 20
`(5) If this section applies because of subsection (2), the liability to pay 21
the penalty attaches to-- 22
(a) each individual who was a director of the company when the act 23
or omission happened giving rise to the finding of the tribunal; 24
and 25
(b) each individual who is a director of the company when the penalty 26
is imposed. 27
`(6) If this section applies because of subsection (3), the liability to pay 28
the amount attaches to-- 29
(a) each individual who was a director of the company when building 30
work the subject of the claim was, or was to have been, carried 31
out; and 32
s 36 62 s 36
Queensland Building Services Authority
Amendment
(b) each individual who was a director of the company when the 1
payment was made by the authority. 2
`(7) A liability under subsection (4), (5) or (6) to pay a penalty or an 3
amount applies regardless of the status of the company, including for 4
example, that the company is being or has been wound up. 5
`(8) If a liability under subsection (4), (5) or (6) attaches to 2 or more 6
persons, the persons are jointly and severally liable.'. 7
of s 114 (Protection) 8
Replacement
Clause 36. Section 114-- 9
omit, insert-- 10
11
`Protection
`114.(1) Neither the State, the general manager of the authority nor an 12
officer or employee of the authority incurs any civil liability for an honest 13
act or omission, other than a publication act, in the performance or 14
purported performance of functions under this Act. 15
`(2) A civil liability that would, apart from subsection (1), attach to an 16
entity other than the authority attaches instead to the authority. 17
`(3) Neither the State, the authority nor the general manager of the 18
authority incurs any liability for a publication act. 19
`(4) This section does not affect the liability of a person other than the 20
authority to disciplinary action under the conditions of the person's 21
employment. 22
`(5) In this section-- 23
"publication act" means a disclosure or publication made by or for the 24
authority in giving a warning to the public under section 18(2)(f) 25
about-- 26
(a) building work; or 27
(b) the commercial or business reputation of any person associated 28
with building work; or 29
(c) the quality or standard of building work performed by any 30
s 37 63 s 37
Queensland Building Services Authority
Amendment
person; or 1
(d) a contravention or alleged contravention of this Act or the 2
operation or enforcement of this Act.'. 3
of schedule (Transitional and Validating provisions) 4
Amendment
Clause 37.(1) Schedule, part 1, heading, after `PROVISIONS'-- 5
insert-- 6
`FOR ACT No. 98 OF 1991 AND AMENDING ACTS UP TO 7
AND INCLUDING ACT No. 70 OF 1997'. 8
(2) Schedule, part 2, heading, after `PROVISIONS'-- 9
insert-- 10
`FOR ACT No. 70 OF 1997'. 11
(3) Schedule, after section 12-- 12
insert-- 13
`PART 3--TRANSITIONAL PROVISIONS FOR 14
QUEENSLAND BUILDING SERVICES AUTHORITY 15
AMENDMENT ACT 1999 16
`Existing board goes out of office 17
`13. On the commencement of this section, the members of the board in 18
office immediately before the commencement go out of office.'. 19
(4) Schedule, as amended-- 20
renumber as schedule 1. 21
s 38 64 s 38
Queensland Building Services Authority
Amendment
of new schedule 1
Insertion
Clause 38. After schedule 1 (as renumbered)-- 2
insert-- 3
CHEDULE 2 4
`S
`DICTIONARY 5
section 4'. 6
© State of Queensland 1999
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