2002

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Planning)

2002

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Planning)

An Act to amend the Building Act 1972, and for related purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Building Amendment Act 2002.

This Act commences on the day after its notification day.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act 2001, s 75).

This Act amends the Building Act 1972.

Note This Act also amends the Administrative Decisions (Judicial Review) Act 1989 (see s 14).

fidelity certificate—see section 58A (Definitions for pt 5A).

(ii) an approved insurer has issued a certificate that the insurer has insured the work under a residential building insurance policy; or

(iii) the trustees of a scheme approved under division 5A.4 (Approved fidelity fund schemes) have issued a fidelity certificate for the work; and

(2) If a certifier receives a notification under section 37A about building work to which part 5A applies, the certifier must, within 7 days after the day the certifier receives the notice—

(a) tell the building controller in writing whether or not, in the certifier’s opinion—

(i) the work is insured under a residential building insurance policy; or

(ii) a fidelity certificate has been issued for the work by the trustees of a scheme approved under division 5A.4 (Approved fidelity fund schemes); and

(b) if the certifier is of the opinion that the work is insured or a fidelity certificate has been issued—give to the building controller particulars of the policy or certificate.

actuary, for an approved scheme, does not include a special actuary.

approval criteria means the requirements determined under section 58K (Approval criteria of fidelity fund schemes).

approved scheme means a fidelity fund scheme approved under section 58K (Approval criteria of fidelity fund schemes).

fidelity certificate means a certificate issued for building work by the trustees of an approved scheme.

fidelity fund scheme means a scheme for a building industry fidelity fund established under a trust deed.

prudential standards means the standards determined under section 58O (Prudential standards).

special actuary—see section 58ZH (Investigation of liabilities by special actuary).

(1) The Minister may, in writing, approve a fidelity fund scheme.

(2) An application for approval of a fidelity fund scheme must—

(a) be signed by all the trustees of the scheme; and

(b) be accompanied by—

(i) a copy of the trust deed certified in accordance with the approval criteria; and

(ii) any other information prescribed under the approval criteria.

(3) The Minister may approve a fidelity fund scheme only if the scheme complies with the approval criteria.

(4) An approval is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act 2001.

(1) This section applies if the trustees of a fidelity fund scheme apply to the Minister for approval of the scheme.

(2) The Minister may, by written notice given to the trustees, require the trustees to give the Minister—

(a) stated additional information or documents that the Minister reasonably needs to decide the application; or

(b) a stated statutory declaration in relation to information or documents provided in relation to the application.

(3) The Minister is not required to decide the application until the trustees comply with the requirement.

Before approving a fidelity fund scheme, the Minister may require changes to be made to the scheme to ensure that it complies with this Act.

Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations and disallowable instruments (see Legislation Act 2001, s 104).

(1) The Minister may, in writing, determine requirements (the approval criteria) for this Act with which a fidelity fund scheme must comply to be an approved scheme.

(2) The approval criteria must include requirements in relation to—

(a) the management of the fidelity fund scheme in accordance with the trust deed; and

(b) qualifications or suitability for appointment as a trustee of the scheme; and

(c) the powers and duties of the trustees; and

(d) the financial management of the scheme; and

(e) the building work for which a fidelity certificate may be issued or must not be issued under the scheme; and

(f) the people who can or cannot make claims under a fidelity certificate; and

(g) applications for claims under fidelity certificates issued under the scheme; and

(h) dealing with claims under the scheme; and

(i) compliance with the prudential standards.

(3) The approval criteria may apply, adopt or incorporate a law or instrument, or a provision of a law or instrument, as in force from time to time.

Note 1 The text of an applied, adopted or incorporated law or instrument, whether applied as in force from time to time or as at a particular time, is taken to be a notifiable instrument if the operation of the Legislation Act 2001, s 47 (5) or (6) is not disapplied (see s 47 (7)).

Note 2 A notifiable instrument must be notified under the Legislation Act 2001.

(4) A determination is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act 2001.

(1) The approval of a fidelity fund scheme may be given subject to conditions.

(2) A condition may be expressed to have effect despite anything in the prudential standards.

(3) The trustees of an approved scheme each commit an offence if the trustees fail to ensure that the scheme complies with the conditions of the scheme’s approval.

Maximum penalty: 60 penalty units.

(4) An offence against this section is an offence of strict liability.

(1) The trustees of an approved scheme may apply in writing to the Minister to change the scheme.

(2) The application must—

(a) be signed by all the trustees of the scheme; and

(b) set out the proposed change to the scheme and the reasons for the change.

(3) This section does not apply to a change to the scheme declared under the prudential standards to be a change to which this section does not apply.

(1) The Minister may, in writing, approve or refuse to approve a change to an approved scheme.

(2) The Minister must refuse to approve a change to the scheme if not satisfied that the scheme as proposed to be changed would continue to meet the approval criteria and the prudential standards.

(3) This section does not apply to a change to the scheme declared under the prudential standards to be a change to which this section does not apply.

(1) The Minister may, in writing, determine standards (the prudential standards) for this Act relating to prudential matters that must be complied with by an approved scheme.

Note Power given under an Act to make a statutory instrument includes power to make different provision for different categories, eg different kinds of schemes (see Legislation Act 2001, s 48).

(2) The prudential standards may—

(a) require the Minister’s approval of the trustees of the approved scheme; and

(b) make provision in relation to—

(i) the capital adequacy of the scheme; and

(ii) the valuation of liabilities; and

(iii) the effectiveness of risk management strategies and techniques; and

(iv) requiring the giving of information to the commissioner for fair trading, or any other entity prescribed under the prudential standards, about decisions by the trustees to pay or refuse to pay claims.

Note An Act that authorises the making of a statutory instrument (eg prudential standards) also authorises an instrument to be made with respect to any matter required or permitted to be prescribed under the authorising law or that is necessary or convenient to be prescribed for carrying out or giving effect to the authorising law (see Legislation Act 2001, s 44).

(3) The prudential standards may—

(a) provide for the exercise of discretions under the standards, including discretions to approve, impose, adjust or exclude particular prudential requirements in relation of an approved scheme; and

(b) apply, adopt or incorporate a law or instrument, or a provision of a law or instrument, as in force from time to time.

Note 1 The text of an applied, adopted or incorporated law or instrument, whether applied as in force from time to time or as at a particular time, is taken to be a notifiable instrument if the operation of the Legislation Act 2001, s 47 (5) or (6) is not disapplied (see s 47 (7)).

Note 2 A notifiable instrument must be notified under the Legislation Act 2001.

(4) A determination under this section is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act 2001.

(5) In this section:

prudential matters, for an approved scheme, means matters relating to the conduct by the trustees of the scheme of any of the scheme’s affairs—

(a) in a way that keeps the scheme’s affairs in a sound financial position; and

(b) with integrity, prudence and professional skill.

(1) The trustees of an approved scheme each commit an offence if the trustees fail to ensure that the scheme complies with the prudential standards.

Maximum penalty: 60 penalty units.

(2) An offence against this section is an offence of strict liability.

(1) This section applies if the Minister is satisfied on reasonable grounds that an approved scheme—

(a) is contravening a provision of the prudential standards; or

(b) is likely to contravene a provision of the prudential standards in a way that is likely to give rise to prudential risk.

(2) The Minister may, by written notice given to the trustees of the approved scheme, require the trustees to comply with the provision of the prudential standards within a stated time.

(3) The trustees must comply with the notice despite anything in the trust deed or in any contract or arrangement to which they are party.

(4) The trustees of an approved scheme each commit an offence if the trustees fail to comply with a notice given to the trustees under this section.

Maximum penalty: 60 penalty units.

(5) An offence against this section is an offence of strict liability.

(1) The Minister may, by written notice given to the trustees of an approved scheme, require the trustees to give the Minister stated information about anything relevant to the scheme’s ability to meet its liabilities and potential liabilities at a particular date or time or at particular intervals, including, for example, information about—

(a) the scheme’s liabilities and potential liabilities; and

(b) contributions to the scheme; and

(c) administrative or other costs of the scheme

(d) claims received by the scheme.

(2) The notice must state a reasonable period for complying with the notice.

(3) Without limiting subsection (1) (d), the notice may require information about—

(a) the number of claims received by the scheme; and

(b) the amount of each claim; and

(c) the number of claims that have been paid; and

(d) the amount paid on each claim; and

(e) if a claim was rejected—the reason for its rejection.

(4) The trustees of an approved scheme each commit an offence if the trustees fail to comply with a notice given to the trustees under this section.

Maximum penalty: 60 penalty units.

(5) An offence against this section is an offence of strict liability.

(1) The Minister may take action under this section in relation to an approved scheme on any of following grounds:

(a) the trustees of the scheme have contravened this Act or another Territory law in relation to the scheme;

Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations and disallowable instruments (see Legislation Act 2001, s 104).

(b) the scheme is insolvent and is unlikely to return to solvency within a reasonable time;

(c) the scheme has inadequate capital and is unlikely to have adequate capital within a reasonable time;

(d) the scheme is, or is likely to become, unable to meet its liabilities;

(e) there is, or there may be, a risk to the security of the scheme’s assets;

(f) there is, or there may be, a sudden deterioration in the scheme’s financial condition;

(g) the scheme has ceased to issue fidelity certificates in the ACT;

(h) a ground prescribed under the prudential standards exists for the suspension or cancellation of the approval of the scheme.

(2) If the Minister proposes to suspend or cancel the approval of the scheme, the Minister must give the trustees of the scheme a written notice—

(a) stating the grounds on which the Minister proposes to suspend or cancel the approval; and

(b) stating the facts that, in the Minister’s opinion, establish the grounds; and

(c) telling the trustees that the trustees may, within a stated reasonable time, give a written response to the Minister about the matters in the notice.

(3) If, after considering any response given to the Minister in accordance with subsection (2) (c), the Minister is satisfied that the grounds for suspending or cancelling the approval have been established, the Minister may, in writing, suspend or cancel the approval.

(4) If the Minister suspends or cancels the approval, the Minister must give written notice of the suspension or cancellation to the trustees.

(5) Suspension or cancellation of an approval takes effect on the day when notice of the suspension or cancellation is given to the trustees or, if the notice states a later date of effect, that date.

(6) A suspension or cancellation under this section is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act 2001.

(1) The Minister may, in writing, cancel the approval of an approved scheme if the trustees of the scheme ask the Minister, in writing, to do so.

(2) If the Minister cancels the approval, the Minister must give written notice of the cancellation to the trustees.

(3) A cancellation under this section is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act 2001.

(1) If the Minister suspends or cancels the approval of a fidelity fund scheme under this division, the Minister may apply to the Supreme Court for orders to give effect to, or consequential on, the suspension or cancellation.

(2) On application under subsection (1), the Supreme Court may make the orders it considers just, including—

(a) orders for the winding-up of the scheme; and

(b) orders in relation to the assets and liabilities of the scheme.

(1) The trustees of an approved scheme must, at all times, have an address for service in the ACT for this Act.

(2) An address becomes the address for service for the trustees when written notice of the address is given by the trustees to the Minister.

(3) The address continues to be the address for service until the Minister is given written notice by the trustees of another address for service for the trustees.

(1) The trustees of an approved scheme must appoint—

(a) an auditor for the scheme; and

(b) an actuary for the scheme.

Note For the making of appointments (including acting appointments), see Legislation Act 2001, div 18.3.

(2) Within 6 weeks after a person stops being the auditor or actuary for an approved scheme, the trustees must appoint another person to be auditor or actuary.

(3) A person may only hold an appointment as auditor or actuary for an approved scheme if—

(a) the Minister has approved the appointment and its terms; and

(b) the approval has not been revoked.

(4) An appointment of a person as auditor or actuary for an approved scheme cannot take effect while an appointment of another person in that position is current.

(1) The trustees of an approved scheme may, in writing, ask the Minister to approve—

(a) the appointment of a person as auditor for the scheme; or

(b) the appointment of a person as actuary for the scheme.

(2) The Minister may approve the appointment only if satisfied that the person meets the eligibility criteria for the appointment prescribed under the prudential standards.

(3) The Minister must give the trustees notice of the Minister’s decision to approve or refuse to approve the appointment.

(4) If the Minister refuses to approve the decision, the notice must include the reasons for the refusal.

(1) The Minister may, in writing, revoke the approval of a person’s appointment as auditor or actuary for an approved scheme if satisfied that the person—

(a) has failed to exercise adequately and properly the functions of the appointment under this Act; or

Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act 2001, s 104).

(b) does not meet 1 or more of the criteria for fitness and propriety prescribed under the prudential standards; or

(c) does not meet the eligibility criteria for the appointment prescribed under the prudential standards.

(2) The revocation of the approval takes effect on the day the revocation is made.

(3) The Minister must give a copy of the revocation to the person and to the trustees of the approved scheme.

A person stops holding an appointment as auditor or actuary of an approved scheme if—

(a) the approval of the person’s appointment is revoked under section 58Y (Revocation of approval of appointment of auditor or actuary); or

(b) the person resigns the appointment by giving written notice to the trustees of the approved scheme; or

(c) the trustees end the appointment by giving written notice to the person.

(1) Within 14 days after the trustees for an approved scheme appoint a person as auditor or actuary for the scheme, the trustees must give the Minister written notice of the appointment and any other matters prescribed under the prudential standards.

(2) Within 14 days after a person stops being auditor or actuary for an approved scheme, the trustees must give the Minister written notice of that event, including the date when it happened and the reasons for and circumstances of that event.

(3) Subsection (2) does not apply in relation to the revocation by the Minister of the approval of a person’s appointment.

(1) The auditor or actuary for an approved scheme commits an offence if the auditor or actuary contravenes the prudential standards in relation to the exercise of his or her functions as auditor or actuary for the scheme.

Maximum penalty: 60 penalty units.

(2) An offence against this section is an offence of strict liability.

(1) This section applies if the auditor or actuary for an approved scheme has reasonable grounds for believing that—

(a) the scheme is insolvent, or there is a significant risk that it will become insolvent; or

(b) the trustees have contravened this Act or another Territory law in relation to the scheme.

Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations and prudential standards (see Legislation Act 2001, s 104).

(2) The auditor or actuary must give the Minister written notice about the matter within 7 days of having the reasonable grounds.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

(1) This section applies to a person who is, or has been, an auditor or actuary for an approved scheme.

(2) The person may give information to the Minister about the approved scheme if the person considers that giving information will assist the Minister to exercise the Minister’s functions under this part.

(3) If this section applies to a person, the Minister may, by written notice given to the person, require the person to give stated information about the approved scheme to the Minister within a stated reasonable time.

(4) A person commits an offence if the person contravenes a notice under this section.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

(5) A person commits an offence if the person gives the Minister information that is false, or misleading in a material particular, in compliance or purported compliance with a notice under this section.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(1) The auditor for an approved scheme must, in accordance with the prudential standards—

(a) exercise the functions of auditor for the scheme prescribed under the prudential standards; and

(b) find out and report on whether the trustees of the scheme are complying with the prudential standards; and

(c) prepare, and give to the trustees of the scheme, any reports required under the prudential standards to be prepared by the auditor; and

(d) give the trustees any certificates relating to the scheme’s accounts that are required under the prudential standards to be prepared by the auditor.

(2) A report under subsection (1) (c) must deal with all of the matters required under the prudential standards to be dealt with in the report.

(3) A certificate under subsection (1) (d) must contain statements of the auditor’s opinion on the matters required under the prudential standards to be dealt with in the certificate.

(1) The actuary for an approved scheme must, in accordance with the prudential standards—

(a) exercise the functions of actuary for the scheme prescribed under the prudential standards; and

(b) prepare, and give to the trustees of the scheme, the reports (if any) required under the prudential standards to be prepared by the actuary.

(2) A report under subsection (1) (b) must deal with all of the matters required under the prudential standards to be dealt with in the report.

(1) The trustees of an approved scheme must, in accordance with the prudential standards, give to the Minister—

(a) a copy of each certificate given to the trustees under section 54ZE (Auditor’s role); and

(b) the reports mentioned in that section and section 58ZF (Actuary’s role).

Maximum penalty: 60 penalty units.

(2) An offence against this section is an offence of strict liability.

(1) The Minister may, by written notice given to the trustees of an approved scheme, require the trustees to appoint, at the scheme’s expense, an additional actuary (the special actuary) to—

(a) investigate completely or partially the scheme’s liabilities as at a particular time; and

(b) give the Minister a written report within a stated period.

(2) The special actuary must not be—

(a) the actuary appointed under section 58W (Appointment of auditor and actuary for approved scheme); or

(b) a trustee or officer of the scheme.

Note For who can be appointed a special actuary, see section 58ZJ (Who can be appointed as a special actuary).

(3) Within 7 days after the trustees are given the notice, the trustees must appoint the special actuary and give the Minister written notice of the actuary’s name.

(4) Within 7 days after being notified of the special actuary’s name, the Minister may give written notice to the trustees that the actuary is not acceptable to the Minister.

(5) If the trustees are given a notice under subsection (4), the trustees must within 7 days—

(a) appoint a different special actuary; and

(b) give the Minister written notice of the name of that actuary.

(6) Subsection (4) applies whether the notification of the special actuary’s name is under subsection (3) or subsection (5) (b).

(7) The trustees must ensure that the special actuary’s report is given to the Minister—

(a) within 30 days after the Minister gave the notice under subsection (1); or

(b) within any additional further time the Minister allows in writing.

(8) The report must be signed by the special actuary.

(9) Also, the report must contain a statement of the special actuary’s opinion about each of the following:

(a) the adequacy of the whole or part of the amount stated in the scheme’s accounts in relation to its liabilities, and the amount that the actuary considers would be adequate in the circumstances;

(b) the accuracy of any relevant valuations made by the actuary;

(c) the assumptions used by the actuary in making the valuations;

(d) the relevance, appropriateness and accuracy of the information on which those valuations were based;

(e) any other matter in relation to which the prudential standards require a statement of the actuary’s opinion to be included in the report.

(1) The trustees of an approved scheme commit an offence if—

(a) the Minister requires the trustees to appoint a special actuary under section 58ZH (Investigation of liabilities by special actuary); and

(b) the trustees—

(i) fail to do so within the time required by section 58ZH (3); or

(ii) if the trustees are required under section 58ZH (5) to appoint a different actuary—fail to appoint that actuary within the time required by that subsection.

Maximum penalty: 100 penalty units.

(2) The trustees of the approved scheme also commit an offence if the trustees do not comply with section 58ZH (7).

Maximum penalty: 100 penalty units.

(1) A person can only be appointed as a special actuary for section 58ZH (Investigation of liabilities by special actuary) if the person—

(a) is a Fellow of The Institute of Actuaries of Australia; or

(b) the Minister has, in writing, approved the person as an actuary for that section.

(2) The Minister may approve a person only if satisfied that the person has actuarial qualifications and experience that make the person an appropriate person to exercise the functions of a special actuary for section 58ZH.

(1) The trustees of an approved scheme commit an offence if the trustees fail to make arrangements necessary to enable the auditor or actuary for the scheme, or any special actuary for the scheme, to exercise his or her functions in relation to the scheme.

Maximum penalty: 60 penalty units.

(2) An offence against this section is an offence of strict liability.

The auditor or actuary for an approved scheme, and any special actuary for the scheme, does not incur civil liability, or criminal liability under the Defamation Act 2001, for an act or omission done honestly and without negligence for this part.

(1) The regulations may prescribe savings or transitional matters necessary or convenient to be prescribed because of the enactment of the Building Amendment Act 2002.

(2) Regulations made for this section must not be taken to be inconsistent with this Act so far as they can operate concurrently with this Act.

(3) This section does not limit section 58ZN (Modification of operation of divisions 5A.4 and 5A.5).

(1) The regulations may modify this Act to make provision in relation to any matter that, in the Executive’s opinion, is not, or not adequately, dealt with in divisions 5A.4 and 5A.5.

This division expires 1 year after it commences.

5 This Act does not apply to a decision under the Building Act 1972, section 58K (Approval of fidelity fund schemes) or section 58S (Suspension or cancellation of approval of approved schemes).

1 For the latest republication of amended laws, see www.legislation.act.gov.au.

2 The Legislation Act 2001, s 133 deals with the meaning of offence penalties that are expressed in penalty units.