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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Building and Development Certifiers Bill 2018
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Objects of Act 2
4 Definitions 2
Part 2 Registration of certifiers
Division 1 Preliminary
5 Certification work requires registration 5
6 Registration of persons to carry out certification works 5
7 Grounds for finding that a person is not a suitable person to carry
out certification work 5
Division 2 Application for registration
8 Application for registration 6
9 Secretary may obtain information from third parties 7
10 Grant or refusal of registration 7
11 Duration of registration 7
12 Variation of registration 7
Building and Development Certifiers Bill 2018 [NSW]
Contents
Page
Division 3 Conditions of registration
13 Conditions of registration 8
14 Compliance with standards or methodologies 8
15 Conditions may provide that authorisation takes effect later 8
Division 4 Suspension or cancellation of registration
16 Grounds for suspension or cancellation of registration 8
17 Suspension of registration 9
18 Cancellation of registration 9
19 Suspension or cancellation may be subject to conditions 9
Division 5 Miscellaneous
20 Offence of contravening condition 9
21 Registration not transferable 9
22 Offence of lending certificate registration 9
23 Voluntary surrender or suspension of registration 10
24 Review by Civil and Administrative Tribunal 10
25 Recovery of unpaid fees 10
Part 3 Requirements on certifiers
Division 1 Insurance or other arrangement
26 Registered certifiers to be indemnified 11
27 Regulations under Division 11
Division 2 Conflicts of interest
28 Conflicts of interest 11
29 Meaning of "conflict of interest" 12
30 Meaning of having a pecuniary interest 13
Division 3 General requirements
31 Requirements relating to contracts for certification work 13
32 Code of conduct 13
33 Principal certifier to notify client of certain changes 13
34 Registered certifier to notify employer of certain changes 14
35 Registered certifier to notify Secretary of certain events 14
36 Return of certificate of registration 15
37 Responsibilities of individuals acting on behalf of registered body
corporate or council 15
Division 4 Additional requirements for registered body corporate
38 Registered directors must ensure certification work carried out lawfully 15
39 Registered directors must report certain conduct 15
40 Registered body corporate must ensure certification work carried out
by individual 16
41 Registered body corporate with insufficient registered directors 16
Division 5 Miscellaneous offences relating to certification work
42 Improper influence with respect to carrying out certification work 16
43 Representing work is work requiring a registered certifier 17
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Building and Development Certifiers Bill 2018 [NSW]
Contents
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44 Knowingly issuing a false certificate 17
Part 4 Disciplinary action against certifiers
45 Grounds for taking disciplinary action 18
46 Functions exercised on behalf of council or body corporate 18
47 Notice to show cause 19
48 Disciplinary action that may be taken by Secretary 19
49 Review by Civil and Administrative Tribunal 20
50 Enforcement of monetary penalties and payment of costs 20
51 Liability for offences not affected 20
Part 5 Accreditation of persons carrying out regulated work
52 Meaning of "regulated work" 21
53 Regulated work requires accreditation 21
54 Accreditation of persons to carry out regulated work 21
55 Regulations may authorise registered certifiers to carry out regulated
work 21
Part 6 Approval of accreditation authorities
Division 1 Accreditation authorities
56 Accreditation authority--meaning 22
57 Functions of an accreditation authority 22
58 Person must be approved to exercise functions of accreditation
authority 23
59 Approval of accreditation authority to exercise functions 23
60 Effect of approval 23
61 Accreditation authority approval guidelines 23
Division 2 Approval procedure
62 Application for approval 24
63 Grant or refusal of approval 24
64 Duration of approval 25
65 Variation of approval 25
Division 3 Conditions of approval
66 Conditions of approval 25
67 Condition that functions are exercised in accordance with approved
accreditation scheme 25
68 Condition that functions are exercised only by individuals notified to
Secretary 25
69 Condition that functions be exercised in the public interest 26
70 Condition requiring provision of information to the Secretary 26
71 Condition relating to independent audits 26
72 Condition relating to investigations and audits conducted by Secretary 26
73 Condition requiring publication of information 26
74 Condition requiring the keeping of records 27
Division 4 Suspension or cancellation of approval
75 Grounds for suspension or cancellation of approval 27
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76 Suspension of approval 27
77 Cancellation of approval 28
78 Suspension or cancellation may be subject to conditions 28
Division 5 Miscellaneous
79 Requirements for an accreditation scheme 28
80 Offence of contravening condition 29
81 Offence of carrying out accreditation authority functions during
suspension 29
82 Surrender of approval 29
83 Review by Civil and Administrative Tribunal 29
84 Disclosure of information 29
Part 7 Powers of authorised officers
Division 1 Preliminary
85 Definitions 30
86 Purposes for which functions under Part may be exercised 30
Division 2 Authorised officers
87 Appointment of authorised officers 30
88 Scope of authority 30
89 Identification 31
Division 3 Information gathering powers
90 Exercise in conjunction with other powers 31
91 Powers of authorised officers to require information and records 31
92 Power of authorised officers to require answers 31
93 Recording of evidence 32
Division 4 Entry to premises
94 Powers of authorised officers to enter premises 32
95 Entry into residential premises only with permission or warrant 32
96 Search warrants 32
97 Requiring assistance 33
98 Powers that may be exercised on premises 33
Division 5 Miscellaneous
99 Taking possession of records to be used as evidence 34
100 Obstruction of authorised officers 34
101 Failure to comply with direction 34
Part 8 Other functions of the Secretary
102 Register of registrations and approvals 35
103 Warning notices 35
104 Undertakings 36
105 Applying for injunctions 36
106 Complaints, investigations and audits of certifiers and accreditation
authorities 36
107 Investigation of councils acting as certifier 36
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Building and Development Certifiers Bill 2018 [NSW]
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108 Exchange of information 37
109 Secretary may require information about insurance policies 38
110 Secretary may exercise functions of an accreditation authority 38
Part 9 Miscellaneous
111 Disclosure and misuse of information 39
112 Responsibilities of councils carrying out certain prescribed certification
work 39
113 Delegation 40
114 Personal liability 40
115 Offences by bodies corporate 40
116 Service of documents 40
117 Certificate evidence of certain matters 41
118 Penalty notices 41
119 Proceedings for offences 42
120 Regulations 42
121 Repeals 43
Schedule 1 Savings, transitional and other provisions 44
Schedule 2 Amendment of Home Building Act 1989 No 147 48
Schedule 3 Amendment of other Acts and instruments 51
Page 5
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2018
New South Wales
Building and Development Certifiers Bill 2018
Act No , 2018
An Act to provide for the registration of persons carrying out certification work and the
accreditation of persons carrying out other regulated work; to repeal the Building Professionals
Act 2005 and other legislation; to amend other Acts and instruments consequentially; and for other
purposes.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Building and Development Certifiers Bill 2018 [NSW]
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Building and Development Certifiers Act 2018.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Objects of Act
The objects of this Act are as follows:
(a) to provide for the registration of persons to carry out certification work and the
accreditation of persons to carry out other regulated work,
(b) to recognise that certification work is an important public function with
potential impacts on public health, safety and amenity and to ensure that it is
carried out impartially, ethically and in the public interest,
(c) to provide for the approval of certain bodies corporate as accreditation
authorities to exercise accreditation functions under this Act,
(d) to ensure appropriate scrutiny and review of actions taken by persons
exercising functions under this Act and the certification legislation,
(e) to provide a framework to permit the continuous improvement of the carrying
out of certification work.
4 Definitions
(1) In this Act:
accreditation authority--see section 56.
accreditation authority approval guidelines means the guidelines adopted under
section 61.
accreditation scheme of an accreditation authority--see section 63 (2).
certificate of registration means a certificate of registration issued under section 6.
certification legislation means the following Acts or provisions of Acts and the
regulations under those Acts or provisions:
(a) this Act,
(b) the Environmental Planning and Assessment Act 1979,
(c) Part 4 of the Strata Schemes Development Act 2015,
(d) Division 5 of Part 2 of the Swimming Pools Act 1992,
(e) an Act, or provision of an Act, prescribed by the regulations.
certification work means the following:
(a) the exercise of a function of a certifier (including a principal certifier)
specified in section 6.5 of the Environmental Planning and Assessment Act
1979,
(b) the determination of an application for a strata certificate within the meaning
of the Strata Schemes Development Act 2015,
(c) the inspection of swimming pools under Division 5 of Part 2 of the Swimming
Pools Act 1992 and the issuing of certificates of compliance and notices under
that Division,
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Building and Development Certifiers Bill 2018 [NSW]
Part 1 Preliminary
(d) the exercise of any other function of a registered certifier under the
certification legislation or under another Act or law,
(e) any other work of a kind prescribed by the regulations,
but does not include work of a kind that is excluded from this definition by the
regulations.
class of accreditation means a class of accreditation prescribed under section 54 (5).
class of registration means a class of registration prescribed under section 6 (4).
close associate has the same meaning as it has in the Home Building Act 1989.
Department means the Department of Finance, Services and Innovation.
equivalent authorisation means a licence, certificate, accreditation, registration or
other authorisation or qualification that is issued or conferred under the laws of
another jurisdiction and that authorises the holder to carry out work that is similar to
certification work.
function includes a power, authority or duty, and exercise a function includes
perform a duty.
functions of an accreditation authority--see section 57.
grant registration, approval or accreditation includes grant a renewal or restoration
of registration, approval or accreditation.
register means the register maintained by the Secretary under section 102.
registered body corporate means a body corporate that is a registered certifier.
registered certifier means a person who is registered under this Act and whose
registration is in force.
registered director means a registered individual who is a director of a registered
body corporate.
registered individual means an individual who is a registered certifier.
registration means registration granted under this Act and in force.
regulated work--see section 52.
regulating accreditation authority--see section 56.
relevant offence means the following offences (whether committed in this or another
Australian jurisdiction):
(a) an offence against the certification legislation,
(b) an offence with respect to the carrying out of certification work or work
authorised to be carried out under an equivalent authorisation,
(c) an offence with respect to a failure to comply with a condition of registration
or an equivalent authorisation,
(d) an offence involving fraud or dishonesty,
(e) an offence or class of offences prescribed by the regulations.
Secretary means:
(a) the Commissioner for Fair Trading, Department of Finance, Services and
Innovation, or
(b) if there is no person employed as Commissioner for Fair Trading--the
Secretary of the Department of Finance, Services and Innovation.
Tribunal means the Civil and Administrative Tribunal.
Note. The Interpretation Act 1987 contains definitions and other provisions that affect the
interpretation and application of this Act.
(2) Notes included in this Act do not form part of this Act.
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Part 1 Preliminary
(3) Words and expressions used in this Act (but not defined in this section) have the same
meanings as they have in the Environmental Planning and Assessment Act 1979.
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Part 2 Registration of certifiers
Part 2 Registration of certifiers
Division 1 Preliminary
5 Certification work requires registration
(1) A person must not carry out certification work unless:
(a) the person is registered and the registration authorises the person to carry out
the certification work, or
(b) the person is otherwise lawfully authorised to carry out the certification work.
(2) A local council is not required to be registered to carry out certification work.
(3) A person must not falsely represent that the person:
(a) can carry out certification work, or
(b) is registered or is registered in a particular class.
Maximum penalty: 1,000 penalty units (in the case of a body corporate) or
300 penalty units (in any other case).
6 Registration of persons to carry out certification works
(1) The Secretary may, by granting registration under this Part, authorise a person to
carry out certification work.
(2) Registration authorises only the class of certification work authorised by the class of
registration granted.
(3) Registration is subject to conditions of registration.
(4) The regulations may prescribe different classes of registration that authorise the
carrying out of different classes of certification work.
(5) The Secretary may issue a certificate of registration to a person who is registered
under this Part.
7 Grounds for finding that a person is not a suitable person to carry out certification
work
(1) A person is not a suitable person to carry out certification work if:
(a) the person is disqualified from being registered, or
(b) the person (including, if the person is a body corporate, a director of the body
corporate) is a natural person who is under 18 years of age, or
(c) the person does not have the qualifications, skills, knowledge and experience
required to carry out the certification work, or
(d) the person (including, if the person is a body corporate, a director of the body
corporate) is not a fit and proper person to carry out the certification work, or
(e) the person is a mentally incapacitated person, or
(f) the person is a body corporate and no director of the body corporate is
registered in a class of registration that would authorise the director to carry
out the certification work, or
(g) the Secretary is of the opinion that the person is not a suitable person to carry
out the certification work.
(2) The Secretary may form an opinion that a person is not a suitable person to carry out
certification work in any one or more of the following circumstances:
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(a) the person (including, if the person is a body corporate, a director of the body
corporate) has, within the previous 10 years, been convicted of a relevant
offence,
(b) the Independent Commission Against Corruption, within the previous
10 years, has made a finding or has been of the opinion that the person
(including, if the person is a body corporate, a director of the body corporate)
has engaged in corrupt conduct,
(c) the person (including, if the person is a body corporate, a director of the body
corporate) is an undischarged bankrupt,
(d) the person has contravened a requirement imposed by or under this Act or a
requirement imposed with respect to certification work under another Act or
law,
(e) an equivalent authorisation of the person has been suspended or cancelled
(other than at the person's request) under the law of another Australian
jurisdiction,
(f) the person is disqualified (other than on the grounds of not residing in that
jurisdiction or on the grounds that the person is a body corporate) from holding
an equivalent authorisation under the law of another Australian jurisdiction,
(g) a close associate of the person who would not be a fit and proper person to be
registered exercises a significant influence over the person or the operation
and management of the person's business,
(h) a circumstance prescribed by the regulations.
Division 2 Application for registration
8 Application for registration
(1) A person may apply to the Secretary for a grant of registration.
Note. The definition of grant registration in section 4 (1) includes grant a renewal or
restoration of registration.
(2) An application must:
(a) be in a form approved by the Secretary, and
(b) include or be accompanied by information or evidence that the Secretary
reasonably requires to assess the application.
Note. Part 5A of the Crimes Act 1900 contains offences relating to the making of false or
misleading applications or providing false or misleading information or documents. Those
offences have a maximum penalty of imprisonment for 2 years or a fine of $22,000 (or both).
(3) The regulations may provide for a fee to be paid for an application for the grant of
registration.
(4) The Secretary may require the fee to accompany the application.
(5) If the Secretary considers it necessary to do so, the Secretary may require either or
both of the following:
(a) further documents or information to be provided by the applicant,
(b) in the case of an applicant who is an individual, that the applicant attend an
interview, undertake an oral or written examination or provide a
demonstration of the applicant's skills.
(6) If an application for the grant of a renewal of registration is duly made to the
Secretary before the expiry of registration, the registration is taken to continue in
force until the Secretary notifies the applicant of a decision to grant or refuse the
application.
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9 Secretary may obtain information from third parties
(1) The Secretary may, by written notice, require an applicant or a close associate of the
applicant:
(a) to authorise a person described in the notice:
(i) to provide information specified in the notice that is relevant to the
investigation of the application, or
(ii) to produce, in accordance with directions in the notice, the records
relevant to the investigation of the application that are specified in the
notice and to permit examination of the records, the taking of extracts
from them and the making of copies of them, or
(b) to furnish to the Secretary the authorities and consents that the Secretary
directs for the purpose of enabling the Secretary to obtain information
(including financial and other confidential information) from other persons
concerning the applicant or close associate.
(2) If a requirement made under this section is not complied with, the Secretary may
refuse to consider the application concerned while the non-compliance continues.
(3) A person who complies with a requirement of a notice under this section does not on
that account incur a liability to another person.
10 Grant or refusal of registration
(1) The Secretary may, on application, grant or refuse registration.
(2) The Secretary may grant registration in a class that the Secretary considers
appropriate even if the application is for a different class of registration.
(3) The Secretary may refuse registration:
(a) if the application for registration does not comply with a requirement imposed
by or under this Act, or
(b) if the applicant is not a suitable person to carry out the certification work
authorised by the registration, or
(c) on a ground prescribed by the regulations.
(4) The Secretary is to give the applicant written notice of a decision to grant or refuse
registration.
(5) If the Secretary fails to give an applicant for registration notice of a decision to grant
or refuse registration within the period prescribed by the regulations, the Secretary is
taken to have refused to grant registration.
11 Duration of registration
(1) Registration remains in force for a period of 1, 3, or 5 years as specified by the
Secretary in the notice by which registration is granted, unless sooner cancelled.
(2) Registration has no effect during a period in which registration is suspended.
12 Variation of registration
(1) The Secretary may, at any time, by written notice to a registered certifier, vary the
registration of the registered certifier (including conditions of registration imposed
by the Secretary).
(2) A variation includes the imposition of new conditions on registration, the substitution
of a condition, or the removal or amendment of a condition.
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(3) The regulations may make further provision for or with respect to the variation of
registration, including:
(a) applications for variation, and
(b) fees for applications for variation.
Division 3 Conditions of registration
13 Conditions of registration
(1) Registration is subject to the following conditions:
(a) conditions prescribed by this Act or the regulations,
(b) conditions imposed by the Secretary.
(2) The Secretary may impose conditions on registration:
(a) at the time of the grant of registration, or
(b) at another time by variation of the registration.
(3) A provision of this Division that authorises a type of condition to be imposed on
registration does not prevent other types of conditions being imposed, or limit the
matters that can be provided for by conditions, except where expressly provided for
by this Division.
(4) In this Division:
registered certifier includes a former registered certifier.
14 Compliance with standards or methodologies
The conditions of registration may require the registered certifier to carry out
certification work in accordance with specified standards or methodologies,
including but not limited to standards or methodologies prepared by the Secretary.
15 Conditions may provide that authorisation takes effect later
The conditions of registration may provide that an authorisation conferred by the
registration does not take effect until the end of a specified period or the happening
of a particular event or the occurrence of a specified state of affairs.
Division 4 Suspension or cancellation of registration
16 Grounds for suspension or cancellation of registration
Each of the following constitutes grounds for suspending or cancelling registration:
(a) the registered certifier is not a suitable person to carry out the certification
work authorised by the registration,
(b) the registered certifier is not entitled to be registered,
(c) the registered certifier has applied for the registration to be suspended or
cancelled,
(d) it is a condition of the registration that the registered certifier may carry out
certification work only as an employee of a local council and the registered
certifier has ceased to be so employed or has ceased to be employed in a
position that includes the function of carrying out certification work,
(e) the registration was granted in error,
(f) the Secretary has determined to suspend or cancel the registration under Part 4,
(g) a ground prescribed by the regulations.
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17 Suspension of registration
(1) The Secretary may, by written notice to a registered certifier, suspend the registration
of the registered certifier if the Secretary is satisfied that there are grounds for the
suspension of the registration.
(2) Notice of the suspension must specify:
(a) the date or time from which suspension takes effect, and
(b) the period of suspension, and
(c) the grounds for the suspension.
18 Cancellation of registration
(1) The Secretary may, by written notice to a registered certifier, cancel the registration
of the registered certifier if the Secretary is satisfied that there are grounds for the
cancellation of registration.
(2) Notice of the cancellation must specify:
(a) the date or time from which cancellation takes effect, and
(b) the grounds for the cancellation.
19 Suspension or cancellation may be subject to conditions
(1) Registration may be suspended or cancelled unconditionally or subject to the
conditions that the Secretary determines to impose.
(2) The conditions may include (but are not limited to) conditions to which the
registration was subject immediately before it was suspended or cancelled.
(3) The Secretary may, by written notice given to the former registered certifier, attach
new conditions to, or vary or revoke existing conditions of, the suspension or
cancellation of the registration.
Division 5 Miscellaneous
20 Offence of contravening condition
A registered certifier (including a former registered certifier) who contravenes any of
the following is guilty of an offence:
(a) a condition of the registration (other than a condition for which a different
maximum penalty is prescribed),
(b) a condition of a suspension or cancellation of registration.
Maximum penalty: 300 penalty units.
21 Registration not transferable
Registration is not transferable.
22 Offence of lending certificate registration
(1) A registered certifier must not let out, hire or lend a certificate of registration to
another person or permit another person to use the certificate.
Maximum penalty: 600 penalty units (in the case of a body corporate) or 300 penalty
units (in any other case).
(2) The Secretary must cancel the registration of a registered certifier who is convicted
of an offence against this section.
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23 Voluntary surrender or suspension of registration
(1) A registered certifier may apply to the Secretary for a cancellation or suspension of
registration.
(2) An application must:
(a) be in a form approved by the Secretary, and
(b) include or be accompanied by any information or evidence required by the
Secretary to assess the application.
(3) The regulations may provide for a fee to be paid for an application for the
cancellation or suspension of registration.
(4) The Secretary may require the fee to accompany the application.
(5) A reference in this section to an application for suspension of registration is taken to
include a reference to an application to extend, cancel or vary a suspension imposed
under this section.
24 Review by Civil and Administrative Tribunal
A person aggrieved by any of the following decisions may apply to the Tribunal for
an administrative review under the Administrative Decisions Review Act 1997 of the
decision:
(a) a decision of the Secretary to refuse to grant registration,
(b) a decision of the Secretary to suspend or cancel registration,
(c) a decision of the Secretary to refuse an application to vary registration,
(d) a decision of the Secretary to impose any condition on registration, or on the
suspension or cancellation of registration,
(e) a decision of the Secretary to vary registration,
(f) a decision of the Secretary to refuse an application for the cancellation or
suspension of registration.
25 Recovery of unpaid fees
Any fee payable under this Part may be recovered by the Secretary as a debt in a court
of competent jurisdiction.
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Part 3 Requirements on certifiers
Part 3 Requirements on certifiers
Division 1 Insurance or other arrangement
26 Registered certifiers to be indemnified
(1) A registered certifier must not:
(a) carry out certification work, or
(b) hold out that the registered certifier is adequately insured with respect to
certification work,
unless the registered certifier is adequately insured with respect to the certification
work.
Maximum penalty: 100 penalty units.
(2) For the purposes of this section, a registered certifier is adequately insured with
respect to certification work if the registered certifier:
(a) is indemnified by insurance that complies with the regulations against any
liability to which the registered certifier may become subject as a result of
carrying out the certification work, or
(b) is part of some other arrangement approved by the regulations that provides
indemnity against the liability.
(3) It is a condition of registration that a registered certifier must provide to the
Secretary, in the time specified by the Secretary, information that the Secretary may
require to satisfy the Secretary that the registered certifier is adequately insured with
respect to certification work.
(4) This section does not apply to certification work carried out on behalf of a local
council (whether within or outside the local council's area) by a registered certifier
in the course of the registered certifier's employment by the local council.
27 Regulations under Division
Without limiting the matters for which the regulations may provide with respect to
insurance or any other arrangement, the regulations may make provision for or with
respect to the following:
(a) the persons or bodies who may provide indemnity,
(b) the period for which a registered certifier is to be indemnified,
(c) the amount for which a registered certifier is to be indemnified,
(d) the risks for which a registered certifier is to be indemnified,
(e) the nature and terms of any insurance or arrangement,
(f) the obligations on a person or body who provides indemnity,
(g) the issue of indemnity for liability incurred by a person who was formerly a
registered certifier.
Division 2 Conflicts of interest
28 Conflicts of interest
(1) A registered certifier must not carry out the following certification work if the
registered certifier has a conflict of interest in the certification work:
(a) carry out any inspection,
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(b) issue any certificate (other than a compliance certificate issued under Part 6 of
the Environmental Planning and Assessment Act 1979 by a certifier who is not
issuing the certificate as a principal certifier),
(c) carry out any certification work prescribed by the regulations.
Maximum penalty: 300 penalty units.
(2) The regulations may create exemptions to subsection (1).
(3) The Secretary may, on the written application of a registered certifier, exempt the
registered certifier from subsection (1) with respect to specified certification work or
a class of certification work.
(4) An exemption under this section may be unconditional or subject to conditions.
(5) A registered certifier who has a conflict of interest in certification work does not
commit an offence under this section if an exemption applies to the certification work
and the registered certifier carries out the certification work in accordance with any
conditions to which that exemption is subject.
29 Meaning of "conflict of interest"
(1) For the purposes of this Division, a registered certifier has a conflict of interest in
certification work:
(a) if a reasonable person would conclude that:
(i) the registered certifier has a private interest with respect to the
certification work, and
(ii) the private interest comes into conflict with, and may affect, the duty of
a registered certifier to act in the public interest when undertaking the
certification work, or
(b) in any other circumstances prescribed by the regulations.
(2) Without limiting subsection (1) (a), a registered certifier has a private interest with
respect to certification work if the registered certifier is any of the following:
(a) a person who is obtaining the benefit of the certification work,
(b) a person who has a pecuniary interest in the development or building to which
the certification work relates,
Note. The definition of building in the Environmental Planning and Assessment Act
1979 (which because of section 4 (3) of this Act has the same meaning in this Act)
includes part of a building, a structure (for example a swimming pool fence) or part of
a structure.
(c) a person who has provided professional services (other than services that are
certification work) with respect to the construction or design of the
development or building to which the certification work relates,
(d) a person who has provided professional services (other than services that are
certification work) with respect to a development application for the
development or building to which the certification work relates,
(e) if the certification work is to be carried out in the area of a local council other
than on behalf of the local council--a person who is a councillor or an
employee of the local council,
(f) a person who has a relationship (whether family, personal, employment, or
business) with a person referred to in paragraph (a), (b), (c), (d) or (e),
(g) any person prescribed by the regulations.
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30 Meaning of having a pecuniary interest
(1) For the purposes of this Division, a registered certifier has a pecuniary interest in the
development or building if there is a reasonable likelihood or expectation of
appreciable financial gain or loss to the registered certifier, or to a person with whom
the registered certifier has a relationship (whether family, personal, employment, or
business).
(2) However, a registered certifier does not have a pecuniary interest if:
(a) the interest is so remote or insignificant that it could not reasonably be
regarded as likely to influence any decision the registered certifier might make
with respect to the certification work, or
(b) the interest is merely the lawful payment for the carrying out of certification
work.
Division 3 General requirements
31 Requirements relating to contracts for certification work
(1) It is a condition of registration that a registered certifier must not carry out
certification work for a person unless the work is carried out under a written contract
between:
(a) the person and a council, if the person has appointed the council to carry out
the certification work, or
(b) the person and the registered certifier or the employer of the registered
certifier, in any other case.
(2) A contract under this section must comply with any requirements prescribed by the
regulations.
(3) Without limiting subsection (2), the regulations may make provision for or with
respect to the following:
(a) requiring contracts to contain provisions to the effect of those prescribed by
the regulations,
(b) providing that contracts must not contain provisions to the effect of those
prescribed by the regulations,
(c) requiring specified particulars or information to be included in contracts or to
accompany contracts, for example, an information document published by the
Secretary or another person or body,
(d) the time or times at which fees and charges under contracts are to be paid.
32 Code of conduct
(1) The regulations may prescribe a code of conduct for registered certifiers.
(2) The code of conduct may specify requirements relating to the carrying out of
certification work or the operation of a business that carries out certification work.
(3) The regulations may create offences for failing to comply with the code of conduct
or provisions of the code of conduct.
33 Principal certifier to notify client of certain changes
(1) A person who is appointed as the principal certifier with respect to development must
give written notice to the person who made the appointment, of:
(a) the suspension or cancellation of the appointed person's registration, or
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(b) any change in the registration (including its conditions) that would prevent the
appointed person from exercising the person's functions as principal certifier
for the development.
Maximum penalty: 50 penalty units.
(2) A person who is required to give notice under this section must give the notice within
7 days after the person becomes aware of the matters to which the notice relates.
(3) A local council is not required to give a notice under this section.
34 Registered certifier to notify employer of certain changes
(1) A person who, in the course of the person's employment, carries out certification
work must give written notice to the person's employer, of:
(a) the suspension or cancellation of the person's registration, or
(b) any change in the registration (including its conditions) that would prevent the
person from carrying out the certification work.
Maximum penalty: 50 penalty units.
(2) A person who is required to give notice under this section must give the notice within
7 days after the person becomes aware of the matters to which the notice relates.
35 Registered certifier to notify Secretary of certain events
(1) A registered certifier must notify the Secretary in writing of the following events
within 7 days after becoming aware of the event:
(a) an equivalent authorisation held by the registered certifier being suspended or
cancelled (other than at the request of the registered certifier),
(b) proceedings being instituted against the registered certifier (including, if the
registered certifier is a registered body corporate, proceedings being instituted
against a director of the body corporate) for a relevant offence,
(c) the registered certifier (including, if the registered certifier is a registered body
corporate, a director of the body corporate) being found guilty of a relevant
offence,
(d) the registered certifier (including, if the registered certifier is a registered body
corporate, a director of the body corporate) being investigated in another
Australian jurisdiction by a government agency or a body that issues an
equivalent authorisation with respect to the carrying out of work authorised to
be carried out under an equivalent authorisation or a failure to comply with an
equivalent authorisation,
(e) the registered certifier (including, if the registered certifier is a registered body
corporate, a director of the body corporate) becoming bankrupt or making a
composition, arrangement or assignment for the benefit of creditors,
(f) the registered certifier no longer being covered by insurance that is required
with respect to the carrying out of certification work by or on behalf of the
registered certifier,
(g) if the registered certifier is a registered body corporate--the registered body
corporate becoming the subject of a winding up order or having a controller or
administrator appointed,
(h) if the registered certifier is a registered body corporate--the registered body
corporate having no director who is registered in a class that would authorise
the director to carry out the certification work authorised to be carried out by
the registration of the body corporate,
(i) any event prescribed by the regulations.
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Maximum penalty: 50 penalty units.
(2) A registered certifier must notify the Secretary in writing of any change required to
the particulars recorded in the register with respect to the registered certifier (other
than an event that the Secretary has already been notified of) within 14 days of the
registered certifier becoming aware of the need for the change.
Maximum penalty: 10 penalty units.
36 Return of certificate of registration
(1) The Secretary may at any time by written notice require a person whose registration
has been suspended, varied or cancelled to return to the Secretary within a specified
time a certificate of registration issued to the person.
(2) The notice may be included as part of a statement of a decision by the Secretary to
take disciplinary action against the person.
(3) A person must comply with a notice under this section.
Maximum penalty: 40 penalty units in the case of a body corporate and 20 penalty
units in any other case.
37 Responsibilities of individuals acting on behalf of registered body corporate or
council
A registered director of a registered body corporate or a registered individual who
carries out certification work on behalf of a registered body corporate or a local
council:
(a) is not excused from compliance with any of the person's obligations under this
or any other Act with respect to any certification work done by the person on
behalf of or in the name of the body corporate or local council, and
(b) is subject to the same requirements with respect to the carrying out of the
functions of a registered certifier on behalf of the local council or the
registered body corporate as if he or she were carrying out the work on his or
her own behalf.
Division 4 Additional requirements for registered body corporate
38 Registered directors must ensure certification work carried out lawfully
Each registered director of a registered body corporate must ensure the following
with respect to certification work carried out by or on behalf of the body corporate:
(a) that the body corporate complies with the requirements of this and any other
Act with respect to the carrying out of the certification work and that
appropriate management systems are in place to ensure that the body corporate
complies with those requirements,
(b) that the certification work is allocated to, and carried out by, a registered
individual whose registration authorises the individual to carry out that work,
(c) that the person for whom the certification work is carried out is kept informed
as to the identity of the registered individual who is carrying out the
certification work.
Maximum penalty: 300 penalty units.
39 Registered directors must report certain conduct
Each registered director of a registered body corporate must report to the Secretary
conduct by any of the following persons as soon as practicable after becoming aware
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Part 3 Requirements on certifiers
of the conduct if the director suspects, or should reasonably suspect, that the conduct
is a ground for taking disciplinary action against the person under Part 4:
(a) the body corporate,
(b) any other registered director of the body corporate,
(c) any registered individual who is carrying out certification work on behalf of
the body corporate.
Maximum penalty: 300 penalty units.
40 Registered body corporate must ensure certification work carried out by individual
(1) A registered body corporate must ensure that any certification work that is carried out
on behalf of the body corporate is carried out by a registered individual whose
registration authorises the individual to carry out that work.
Maximum penalty: 1,000 penalty units.
(2) A reference in this section to certification work that is carried out on behalf of a body
corporate includes a reference to certification work carried out on behalf of a local
council that has engaged the body corporate to carry out that work on its behalf.
41 Registered body corporate with insufficient registered directors
(1) A registered body corporate must not carry out any certification work during any
period during which it does not have at least 1 suitably qualified director.
Maximum penalty: 1,000 penalty units.
(2) A registered body corporate that has not had for a continuous period of 3 months at
least 1 suitably qualified director must not carry out any certification work until:
(a) it has a suitably qualified director, and
(b) it has notified the Secretary in writing that it now has a suitably qualified
director.
Maximum penalty: 1,000 penalty units.
(3) In this section:
suitably qualified director, in relation to certification work, means a director who is
a registered individual whose registration authorises the individual to carry out that
work.
Division 5 Miscellaneous offences relating to certification work
42 Improper influence with respect to carrying out certification work
(1) A registered certifier must not, on an understanding that the registered certifier will
act otherwise than impartially in the carrying out of any certification work, seek or
accept, or offer or agree to accept, any benefit of any kind, whether on the registered
certifier's own behalf or on behalf of any other person.
(2) A person must not, on an understanding that a registered certifier will act otherwise
than impartially in the carrying out of any certification work, give, or offer or agree
to give, any benefit of any kind, whether to the registered certifier or to any other
person.
Maximum penalty: 10,000 penalty units or imprisonment for 2 years, or both.
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43 Representing work is work requiring a registered certifier
A person must not, for the purposes of securing work for the person or for any other
person, represent that work is work that can be carried out only by a registered
certifier unless the work is certification work.
Maximum penalty: 300 penalty units.
44 Knowingly issuing a false certificate
(1) A registered certifier must not issue any of the following certificates if the registered
certifier knows that the certificate is false or misleading in a material particular:
(a) a complying development certificate under the Environmental Planning and
Assessment Act 1979 or a certificate referred to in section 6.4 of that Act,
(b) a strata certificate within the meaning of the Strata Schemes Development Act
2015,
(c) a certificate of compliance under Division 5 of Part 2 of the Swimming Pools
Act 1992.
Maximum penalty: 10,000 penalty units or imprisonment for 2 years, or both.
(2) A person cannot be prosecuted under this section in respect of a certificate if
proceedings have been brought under section 4.31 or 6.32 of the Environmental
Planning and Assessment Act 1979 for an order declaring the certificate to be invalid
and the Land and Environment Court has refused to make the order.
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Part 4 Disciplinary action against certifiers
Part 4 Disciplinary action against certifiers
45 Grounds for taking disciplinary action
The Secretary may take disciplinary action against a registered certifier on any one
or more of the following grounds:
(a) the registered certifier has engaged in conduct in connection with the carrying
out of certification work that has fallen short of the standard of competence,
diligence and integrity that a member of the public is entitled to expect of a
reasonably competent registered certifier,
(b) the registered certifier has contravened the certification legislation, whether or
not the registered certifier is prosecuted or convicted for the contravention,
(c) the registered certifier has contravened a law of this or any other Australian
jurisdiction (whether or not the contravention is an offence and whether or not
the registered certifier is prosecuted or convicted for the contravention) with
respect to any of the following:
(i) the carrying out of certification work or work authorised to be carried
out under an equivalent authorisation,
(ii) registration or an equivalent authorisation,
(iii) fraud or dishonesty,
(d) the registered certifier has failed to comply with a statutory or other duty, or a
contractual obligation, imposed on the registered certifier by or in accordance
with a law of this or any other Australian jurisdiction with respect to the
carrying out of certification work or work authorised to be carried out under
an equivalent authorisation,
(e) the registered certifier has carried out certification work in a partial manner or
in a manner that is not in the public interest,
(f) the registered certifier has wilfully disregarded matters to which the registered
certifier is required to have regard in the carrying out of certification work,
(g) the registered certifier has failed to comply with a condition of the registration,
(h) the registered certifier has breached an undertaking given by the registered
certifier,
(i) the registered certifier has failed to comply with an order of the Secretary or
the Tribunal,
(j) the registered certifier has failed to comply with a direction or requirement
under Part 7,
(k) the registered certifier has wilfully misled or obstructed the Secretary or an
authorised officer in the exercise of any function under this Act,
(l) the registered certifier has engaged in improper or unethical conduct that
indicates that the registered certifier is not a fit and proper person to carry out
certification work,
(m) any other ground prescribed by the regulations.
46 Functions exercised on behalf of council or body corporate
A reference in this Part (however expressed) to the carrying out of certification work
or work authorised to be carried out under an equivalent authorisation by a registered
certifier includes a reference to the carrying out of certification work or work
authorised to be carried out under an equivalent authorisation on behalf of a local
council (of this or any other Australian jurisdiction) or a body corporate that is
registered or holds an equivalent authorisation.
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Part 4 Disciplinary action against certifiers
47 Notice to show cause
(1) This section applies if the Secretary is of the opinion that there may be grounds for
taking disciplinary action under this Part against a registered certifier.
(2) The Secretary may serve a written notice on the registered certifier, inviting the
certifier to show cause why the certifier should not be dealt with under this Part.
(3) The notice must state the grounds on which the registered certifier is required to show
cause and must specify the period, being at least 14 days, during which it must be
done.
(4) A registered certifier on whom a notice to show cause has been served may, within
the period specified in the notice, make submissions to the Secretary, orally or in
writing, and provide evidence with respect to the matters to which the notice relates.
(5) The Secretary may conduct any inquiry or make any investigation with respect to the
matters to which the notice relates and the submissions are made, if any, and the
evidence adduced, if any, by or on behalf of the registered certifier with respect to
those matters that the Secretary thinks fit.
(6) The Secretary must, before determining whether or not to take disciplinary action
under this Part against a person, take into consideration any submission made by the
person in accordance with this section.
(7) However, the Secretary may take immediate disciplinary action without taking any
steps under this section if the Secretary is of the opinion that it is in the public interest
to take immediate action.
48 Disciplinary action that may be taken by Secretary
(1) The Secretary may, if satisfied that one or more of the grounds for taking disciplinary
action against a registered certifier has been established, do any one or more of the
following:
(a) determine to take no further action against the registered certifier,
(b) caution or reprimand the registered certifier,
(c) make a determination requiring the registered certifier to pay to the Secretary,
as a penalty, an amount not exceeding $220,000 (in the case of a body
corporate) or $110,000 (in the case of an individual) within a specified time,
(d) impose a condition on the registration of the registered certifier, including a
condition requiring the registered certifier to undertake specified education or
training relating to a particular type of work or business practice within a
specified time,
(e) suspend or cancel the registration of the registered certifier in accordance with
Part 2,
(f) disqualify the registered certifier, either temporarily or permanently, from
being registered or being registered in a particular class.
(2) In determining the disciplinary action to take, the Secretary:
(a) must take into account any other disciplinary action taken against the person
under this Part, and
(b) may take into account any written undertaking that the person proposes to give
under Part 8.
(3) The Secretary is to provide a written statement of a decision made under this section
to the person concerned as soon as is reasonably practicable after the decision is
made.
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Part 4 Disciplinary action against certifiers
(4) The statement of a decision must specify:
(a) the decision that has been made, and
(b) if relevant, the date or time on which the decision takes effect, and
(c) the grounds for the decision.
49 Review by Civil and Administrative Tribunal
A person aggrieved by a decision of the Secretary to take disciplinary action under
this Part may apply to the Tribunal for an administrative review under the
Administrative Decisions Review Act 1997 of the decision.
50 Enforcement of monetary penalties and payment of costs
(1) When a decision of the Secretary to impose a monetary penalty has taken effect and
the amount required to be paid has not been paid to the Secretary:
(a) registration held by the person required to pay is taken to be suspended until
that amount is paid to the Secretary, and
(b) that amount may be recovered by the Secretary as a debt in any court of
competent jurisdiction.
(2) The Secretary may agree in writing to extend the time for payment by a person of any
amount referred to in subsection (1) and, in that case, that subsection does not have
effect with respect to the person during the extension of time.
(3) The Secretary's failure to enter into an agreement under this section cannot be
reviewed by the Tribunal in an application for an administrative review made under
this Act.
51 Liability for offences not affected
(1) A decision to take disciplinary action against a person under this Part does not affect
the liability of the person for any offence against a provision of this or any other Act
or of a regulation made under this or any other Act.
(2) The Secretary is not prevented from taking disciplinary action under this Part merely
because the registered certifier concerned is subject to criminal or civil proceedings
that relate to the same matters or incident to which the disciplinary action relates.
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Part 5 Accreditation of persons carrying out regulated work
Part 5 Accreditation of persons carrying out regulated work
52 Meaning of "regulated work"
In this Act, regulated work means the following:
(a) the carrying out of work as an accredited practitioner under the Environmental
Planning and Assessment Act 1979,
(b) any other work declared by this or any other Act to be regulated work.
53 Regulated work requires accreditation
(1) A person must not carry out regulated work unless the person holds an accreditation
that authorises the person to carry out the regulated work or the person is otherwise
lawfully authorised to carry out the regulated work.
(2) A person must not falsely represent that the person:
(a) can carry out regulated work, or
(b) holds an accreditation of a particular class.
Maximum penalty: 1,000 penalty units (in the case of a body corporate) or
300 penalty units (in any other case).
54 Accreditation of persons to carry out regulated work
(1) An accreditation authority may, by granting accreditation under this Part, authorise
a person to carry out regulated work.
(2) An accreditation authorises only the class of regulated work authorised by the class
of accreditation granted.
(3) An accreditation is subject to any conditions of the accreditation.
(4) An accreditation is suspended during any period where:
(a) there is no regulating accreditation authority with respect to the accreditation,
or
(b) there is a regulating accreditation authority with respect to the accreditation
but the approval of the regulating accreditation authority is suspended.
(5) The regulations may prescribe different classes of accreditation that authorise the
carrying out of different classes of regulated work.
55 Regulations may authorise registered certifiers to carry out regulated work
The regulations may authorise a registered certifier who is registered in a particular
class to carry out regulated work or specified regulated work and in those
circumstances, the regulated work is taken to be certification work when carried out
by a registered certifier.
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Part 6 Approval of accreditation authorities
Part 6 Approval of accreditation authorities
Division 1 Accreditation authorities
56 Accreditation authority--meaning
(1) For the purposes of this Act, an accreditation authority means a body corporate for
the time being approved by the Secretary under this Part to exercise the functions of
an accreditation authority.
Note. Section 110 provides that the Secretary may exercise the functions of an accreditation
authority.
(2) A reference in this Act to an accreditation authority, with respect to any function of
an accreditation authority, includes a reference to a body corporate approved by the
Secretary to exercise the functions of an accreditation authority only if the
accreditation authority is approved to exercise the function concerned.
(3) An accreditation authority that grants an accreditation to a person under this Act is
the regulating accreditation authority with respect to that accreditation.
(4) The Secretary may, in writing, direct an accreditation authority to be the regulating
accreditation authority with respect to an existing accreditation on and from a
specified day and on that day:
(a) the accreditation authority becomes the regulating accreditation authority with
respect to that accreditation for the remaining period of that accreditation, and
(b) the accreditation authority that was the regulating accreditation authority with
respect to that accreditation immediately before that day ceases to be the
regulating accreditation authority.
(5) A direction of the Secretary under this section may specify particular accreditations
or all accreditations belonging to a particular class.
57 Functions of an accreditation authority
(1) For the purposes of this Act, the functions of an accreditation authority are as
follows:
(a) to accredit persons to carry out regulated work in accordance with the
accreditation authority's approved accreditation scheme,
(b) with respect to the holders of accreditations for which the accreditation
authority is the regulating accreditation authority, to do the following in
accordance with the accreditation authority's approved accreditation scheme:
(i) to ensure that those persons comply with the requirements of their
accreditation,
(ii) to investigate possible failures by those persons to comply with those
requirements,
(iii) to exercise disciplinary functions where a failure to comply is found,
including, if necessary, by suspending or cancelling a person's
accreditation,
(c) any other function imposed on an accreditation authority by this or any other
Act or prescribed by the regulations.
(2) Subject to the regulations and the conditions or limitations of its approval as an
accreditation authority, the manner in which an accreditation authority exercises its
functions is to be determined by the accreditation authority.
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Part 6 Approval of accreditation authorities
58 Person must be approved to exercise functions of accreditation authority
(1) A person must not exercise any function of an accreditation authority unless the
person is an accreditation authority that is able to exercise that function.
(2) A person must not falsely represent that the person can:
(a) grant an accreditation, or
(b) grant an accreditation of a particular class, or
(c) exercise any other function of an accreditation authority.
(3) An accreditation authority must not falsely represent that an accreditation granted by
the accreditation authority authorises the holder to carry out particular regulated
work.
Maximum penalty: 1,000 penalty units (in the case of a body corporate) or
300 penalty units (in any other case).
59 Approval of accreditation authority to exercise functions
(1) The Secretary may, by instrument in writing, approve any of the following bodies
corporate to exercise the functions of an accreditation authority with respect to the
accreditation of persons for the purposes of this Act:
(a) a company registered under the Corporations Act 2001 of the Commonwealth,
(b) an association within the meaning of the Associations Incorporation Act 2009
or an incorporated association created under the legislation of another
Australian jurisdiction.
(2) Approval may be unconditional, or subject to conditions or limitations.
(3) In particular, an approval may be limited to issuing a specified class of accreditation.
60 Effect of approval
(1) A body corporate that is approved to exercise the functions of an accreditation
authority may exercise those functions in accordance with this Act.
(2) Nothing in this Act authorises or requires an accreditation authority to act in
contravention of the conditions or limitations of the accreditation authority's
approval as an accreditation authority.
61 Accreditation authority approval guidelines
(1) The Secretary must adopt guidelines relating to the approval of bodies corporate as
accreditation authorities for the purposes of this Act.
(2) The guidelines may make provision for or with respect to the following:
(a) the suitability of a body corporate to be approved as an accreditation authority,
including the qualifications, skills, knowledge and experience required,
(b) the insurance required to be held by an accreditation authority,
(c) the matters to be set out in an accreditation scheme,
(d) any other matters prescribed by the regulations.
(3) The Secretary is to make the guidelines publicly available.
(4) The Secretary may amend or replace the guidelines.
(5) The Secretary may adopt different guidelines with respect to the approval of
accreditation authorities that grant different classes of accreditation.
(6) A reference in this Act to the accreditation authority approval guidelines with respect
to the approval of a body corporate as an accreditation authority is, if the Secretary
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Part 6 Approval of accreditation authorities
has adopted different guidelines with respect to different classes of accreditation, a
reference to the guidelines relevant to the class of accreditation that the body
corporate would grant if it were to be approved.
Division 2 Approval procedure
62 Application for approval
(1) A body corporate may apply to the Secretary for a grant of approval to exercise the
functions of an accreditation authority.
(2) An application must:
(a) be in a form approved by the Secretary, and
(b) set out the applicant's proposed accreditation scheme, and
(c) include or be accompanied by any information or evidence of a kind
prescribed by the regulations, and
(d) include or be accompanied by any other information or evidence that the
Secretary reasonably requires to assess the application.
(3) The regulations may provide for a fee to be paid for an application for the grant of
approval.
(4) The Secretary may require the fee to accompany the application.
(5) If an application for a grant of renewal of approval is duly made to the Secretary
before the expiry of approval, approval is taken to continue in force until the
Secretary notifies the applicant of a decision to grant or refuse the application.
63 Grant or refusal of approval
(1) The Secretary may, on application, grant or refuse approval to exercise the functions
of an accreditation authority.
(2) On the granting of an approval, the applicant's proposed accreditation scheme
becomes, for the purposes of this Act, the accreditation scheme of the accreditation
authority and is taken to form part of the approval.
(3) The Secretary may refuse an approval to exercise the functions of an accreditation
authority:
(a) if the application for an approval does not comply with any requirement
imposed by or under this Act, or
(b) if the Secretary is of the opinion that it is not in the public interest to approve
the application, or
(c) if the Secretary is of the opinion that the applicant is not a suitable person to
be approved as an accreditation authority, or
(d) if the Secretary is of the opinion that the proposed accreditation scheme does
not comply with the requirements of this Act, the regulations or the
accreditation authority approval guidelines, or
(e) if the Secretary is not satisfied that the applicant has met all the requirements
for the grant of an approval set out in the accreditation authority approval
guidelines, or
(f) on any other ground prescribed by the regulations.
(4) A decision about the suitability of a person for approval may be made having regard
to any of the following:
(a) any matter prescribed by the regulations,
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Part 6 Approval of accreditation authorities
(b) any other circumstances that the Secretary considers relevant.
(5) The Secretary is to give the applicant written notice of a decision to grant or refuse
approval.
(6) If the Secretary fails to give an applicant for approval notice of a decision to grant or
refuse approval within the period prescribed by the regulations, the Secretary is taken
to have refused approval.
(7) The Secretary is to cause notice of any approval granted to be published in the
Gazette.
64 Duration of approval
(1) An approval to exercise the functions of an accreditation authority remains in force
for a period of 1, 3 or 5 years as specified by the Secretary in the notice by which
approval is granted, unless sooner cancelled.
(2) An approval has no effect during any period in which the approval is suspended.
65 Variation of approval
(1) The Secretary may, at any time, by written notice to a person who has been approved
to exercise the functions of an accreditation authority, vary the approval of the person
(including the accreditation scheme or any conditions of approval imposed by the
Secretary).
(2) A variation includes the imposition of new conditions on an approval, the
substitution of a condition, or the omission or amendment of a condition.
(3) The regulations may make further provision for the variation of approval, including:
(a) applications for variation, and
(b) fees for applications for variation.
Division 3 Conditions of approval
66 Conditions of approval
(1) An approval to exercise the functions of an accreditation authority is subject to the
following conditions:
(a) any conditions prescribed by this Act or the regulations,
(b) any conditions imposed by the Secretary.
(2) The Secretary may impose conditions on an approval:
(a) at the time of the grant of the approval, or
(b) at any other time by variation of the approval.
67 Condition that functions are exercised in accordance with approved accreditation
scheme
It is a condition of approval as an accreditation authority that the functions of the
accreditation authority will be exercised only in accordance with the accreditation
scheme of the accreditation authority.
68 Condition that functions are exercised only by individuals notified to Secretary
It is a condition of approval as an accreditation authority that the functions of the
accreditation authority will be exercised only by individuals who are notified to the
Secretary as individuals who are to exercise those functions for the accreditation
authority.
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69 Condition that functions be exercised in the public interest
It is a condition of approval as an accreditation authority that the accreditation
authority must act in the public interest in the exercise of its functions.
70 Condition requiring provision of information to the Secretary
(1) It is a condition of approval as an accreditation authority that the accreditation
authority must, when requested in writing by the Secretary to do so, provide the
Secretary with any information relating to the exercise of its functions as an
accreditation authority as the Secretary may require.
(2) The information must, if the Secretary specifies a time within which it must be
provided, be provided within that time.
(3) The regulations may make further provision with respect to the provision of
information under this section.
(4) An accreditation authority that fails to comply with the condition set out in this
section is guilty of an offence.
Maximum penalty: 50 penalty units.
71 Condition relating to independent audits
(1) It is a condition of approval as an accreditation authority that the accreditation
authority must, when requested in writing by the Secretary to do so, engage an
auditor (approved by the Secretary) to conduct an audit of the accreditation
authority's exercise of its functions or those of its functions that may be specified by
the Secretary.
(2) The audit must, if the Secretary specifies a time within which it must be completed,
be completed within that time and a copy of the report of the audit must be provided
to the Secretary as soon as practicable.
(3) The regulations may make further provision with respect to audits under this section.
72 Condition relating to investigations and audits conducted by Secretary
It is a condition of approval as an accreditation authority that the accreditation
authority must provide reasonable assistance to the Secretary with respect to any
investigation or audit of the accreditation authority by the Secretary.
73 Condition requiring publication of information
(1) It is a condition of approval as an accreditation authority that the accreditation
authority must, when requested in writing by the Secretary to do so, make available
to the public information relating to the exercise of its functions as an accreditation
authority (including identifying information about the holders of accreditation) that
may be specified by the Secretary.
(2) The information must, if the Secretary specifies a manner in which it must be made
available, be made available in that manner.
(3) The regulations may make further provision with respect to making information
available under this section.
(4) An accreditation authority that fails to comply with the condition set out in this
section is guilty of an offence.
Maximum penalty: 100 penalty units.
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Part 6 Approval of accreditation authorities
74 Condition requiring the keeping of records
(1) It is a condition of approval as an accreditation authority that the accreditation
authority must keep the records that are prescribed by the regulations.
(2) The regulations made under this section may prescribe the manner and form in which
the records are to be kept and the time for which those records must be retained.
(3) A requirement to retain records continues to apply to a body corporate even if the
body corporate ceases to be an accreditation authority.
(4) An accreditation authority or former accreditation authority that fails to comply with
a condition or requirement set out in this section is guilty of an offence.
Maximum penalty: 100 penalty units.
Division 4 Suspension or cancellation of approval
75 Grounds for suspension or cancellation of approval
(1) Each of the following constitutes grounds for suspending or cancelling approval to
exercise the functions of an accreditation authority:
(a) the Secretary is of the opinion that the accreditation authority has contravened
a requirement imposed by or under this Act,
(b) the Secretary is of the opinion that the accreditation authority is no longer a
suitable person to be approved to exercise the functions of an accreditation
authority,
(c) the Secretary is of the opinion that the accreditation authority should not have
been granted an approval because the Secretary has received information
about the accreditation authority and is of the opinion that, had the information
been received at the time the application for approval or renewal of the
approval was made, the Secretary would have refused the application,
(d) the Secretary is of the opinion that the accreditation authority is no longer
exercising the functions of an accreditation authority,
(e) any other grounds prescribed by the regulations.
(2) A decision about the suitability of a person for approval may be made having regard
to any of the following:
(a) the fact that the accreditation authority has been found guilty of an offence
under this Act or the regulations, or an offence under any other Act or law,
(b) any matter prescribed by the regulations,
(c) any other circumstances that the Secretary considers relevant.
(3) In this Division:
accreditation authority includes a former accreditation authority.
76 Suspension of approval
(1) The Secretary may, by written notice to an accreditation authority, suspend approval
to exercise the functions of an accreditation authority if there are grounds for the
suspension of approval.
(2) Notice of the suspension must specify:
(a) the date or time from which suspension takes effect, and
(b) the period of suspension, and
(c) the grounds for the suspension.
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Part 6 Approval of accreditation authorities
77 Cancellation of approval
(1) The Secretary may, by written notice to an accreditation authority, cancel approval
to exercise the functions of an accreditation authority if:
(a) the Secretary is satisfied that there are grounds for the cancellation of
approval, or
(b) the accreditation authority applies for cancellation of approval.
(2) Notice of the cancellation must specify:
(a) the date or time from which cancellation takes effect, and
(b) the grounds for the cancellation.
78 Suspension or cancellation may be subject to conditions
(1) An approval to exercise the functions of an accreditation authority may be suspended
or cancelled unconditionally or subject to any conditions that the Secretary imposes.
(2) Those conditions may include (but are not limited to) any conditions to which the
approval was subject immediately before it was suspended or cancelled.
(3) The Secretary may, by written notice given to the accreditation authority, attach new
conditions to, or vary or revoke any existing conditions of, the suspension or
cancellation of the approval.
Division 5 Miscellaneous
79 Requirements for an accreditation scheme
(1) An accreditation scheme for an accreditation authority must set out the following:
(a) the procedures that the accreditation authority will follow with respect to the
receipt of applications for accreditation, the assessment of those applications
and the granting or refusal of accreditation,
(b) the fees (if any) that the accreditation authority will charge,
(c) the process by which aggrieved persons can seek a review of decisions of the
accreditation authority,
(d) the procedures that the accreditation authority will follow with respect to the
handling of complaints made against the holders of accreditations for which
the accreditation authority is the regulating accreditation authority,
(e) the procedures that the accreditation authority will follow with respect to
investigating potential misconduct by any holder of accreditation and the
disciplinary action that will be taken by the accreditation authority if
misconduct is found,
(f) any matter required to be set out in the accreditation scheme by the regulations
or the accreditation scheme approval guidelines.
(2) An accreditation scheme must provide for the following:
(a) a merit based assessment process for the accreditation of persons,
(b) a process by which an aggrieved person can obtain an independent review of
a decision of the accreditation authority to refuse to grant accreditation,
suspend or cancel accreditation, take disciplinary action or impose a condition
on accreditation,
(c) any matter prescribed by the regulations.
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Part 6 Approval of accreditation authorities
80 Offence of contravening condition
An accreditation authority or former accreditation authority who contravenes any of
the following is guilty of an offence:
(a) a condition of its approval (other than a condition for which a different
maximum penalty is prescribed),
(b) a condition of a suspension or cancellation of its approval.
Maximum penalty: 2,000 penalty units.
81 Offence of carrying out accreditation authority functions during suspension
A body corporate that holds an approval that is suspended must not purport to grant
an accreditation.
Maximum penalty: 1,000 penalty units.
82 Surrender of approval
(1) An accreditation authority may apply to the Secretary for a cancellation of an
approval.
(2) An application must:
(a) be in a form approved by the Secretary, and
(b) include or be accompanied by any information or evidence required by the
Secretary to assess the application.
(3) The regulations may provide for a fee to be paid for an application for the
cancellation of an approval.
(4) The Secretary may require the fee to accompany the application.
(5) An approval must not be cancelled by the Secretary under this section until at least
180 days after the application is made.
83 Review by Civil and Administrative Tribunal
A person aggrieved by any of the following decisions may apply to the Tribunal for
an administrative review under the Administrative Decisions Review Act 1997 of the
decision:
(a) a decision of the Secretary to refuse to grant approval as an accreditation
authority,
(b) a decision of the Secretary to suspend or cancel approval as an accreditation
authority,
(c) a decision of the Secretary to impose any condition on the grant of approval as
an accreditation authority, or on the suspension or cancellation of an approval,
(d) a decision of the Secretary to vary approval as an accreditation authority,
(e) a decision of the Secretary to refuse an application by an accreditation
authority for the cancellation of the accreditation authority's approval.
84 Disclosure of information
An accreditation authority is authorised to disclose to the Secretary any information
(including personal information within the meaning of the Privacy and Personal
Information Protection Act 1998) obtained by the accreditation authority in the
exercise of its functions under this Act.
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Building and Development Certifiers Bill 2018 [NSW]
Part 7 Powers of authorised officers
Part 7 Powers of authorised officers
Division 1 Preliminary
85 Definitions
In this Part:
authorised officer means a person appointed under Division 2 or a police officer.
motor vehicle has the same meaning as in the Road Transport Act 2013.
occupier of premises means the person who has the management or control of the
premises.
premises includes:
(a) a building or structure, or
(b) land or a place (whether enclosed or built on or not), or
(c) a mobile plant, vehicle, vessel or aircraft.
records includes plans, specifications, maps, reports, books and other documents
(whether in writing, in electronic form or otherwise).
specify an act, matter or thing includes:
(a) describe the act, matter or thing, and
(b) specify a class of acts, matters or things.
vessel means any kind of vessel used in navigation.
86 Purposes for which functions under Part may be exercised
(1) An authorised officer may exercise the functions conferred by this Part for any of the
following purposes:
(a) investigating, monitoring and enforcing compliance with the requirements
imposed by or under this Act,
(b) obtaining information or records for purposes connected with the
administration of this Act,
(c) enforcing, administering or executing this Act.
(2) In this Part, a reference to an authorised purpose is a reference to any purpose
referred to in subsection (1).
Division 2 Authorised officers
87 Appointment of authorised officers
The Secretary may appoint any of the following persons as an authorised officer for
the purposes of this Part:
(a) an employee of the Department,
(b) a person who is an investigator within the meaning of the Fair Trading Act
1987,
(c) a person belonging to a class of persons prescribed by the regulations.
88 Scope of authority
(1) An authorisation of a person as an authorised officer may be given generally, or
subject to conditions, limitations or restrictions or only for limited purposes.
(2) If an authorisation is given subject to conditions, limitations or restrictions or only
for limited purposes, nothing in this Act authorises or requires the authorised officer
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Part 7 Powers of authorised officers
to act in contravention of the conditions, limitations or restrictions or for other
purposes.
89 Identification
(1) Every authorised officer who is not a police officer is to be provided with an
identification card as an authorised officer by the Secretary.
(2) The Secretary may determine not to issue an identification card to an investigator
within the meaning of the Fair Trading Act 1987 who is appointed as an authorised
officer and the person's certificate of identification as an investigator is taken to be
the person's identification card as an authorised officer.
(3) In the course of exercising the functions of an authorised officer under this Act, the
officer must, if requested to do so by any person affected by the exercise of any
registration function, produce to the person the officer's identification card as an
authorised officer or, in the case of a police officer, the officer's police identification.
Division 3 Information gathering powers
90 Exercise in conjunction with other powers
A power conferred by this Division may be exercised whether or not a power of entry
under Division 4 is being exercised.
91 Powers of authorised officers to require information and records
(1) An authorised officer may, by written notice given to a person, direct the person to
furnish to the officer registration information or records (or both) as the authorised
officer may require for an authorised purpose.
(2) A notice under this Division must specify the manner in which information or
records are required to be furnished and a reasonable time by which the information
or records are required to be furnished.
(3) A notice under this Division may only require a person to furnish existing records
that are in the person's possession or that are within the person's power to obtain
lawfully.
(4) The person to whom any record is furnished under this Division may take copies of it.
(5) If any record directed to be furnished under this Division is in electronic, mechanical
or other form, the record must be furnished in written form, unless the notice
otherwise provides.
92 Power of authorised officers to require answers
(1) An authorised officer may direct a person whom the authorised officer suspects on
reasonable grounds to have knowledge of matters with respect to which information
is reasonably required for an authorised purpose to answer questions with respect to
those matters.
(2) An authorised officer may, by written notice, direct a person to attend at a specified
place and time to answer questions under this section if attendance at that place is
reasonably required in order that the questions can be properly put and answered.
(3) The place and time at which a person may be directed to attend under subsection (2)
is to be a place and time nominated by the authorised officer that is reasonable in the
circumstances.
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Part 7 Powers of authorised officers
93 Recording of evidence
(1) An authorised officer may cause any questions and answers to questions given under
this Division to be recorded if the officer has informed the person who is to be
questioned that the record is to be made.
(2) A record may be made using sound recording apparatus or audio visual apparatus, or
any other method determined by the authorised officer.
(3) A copy of any registration record must be provided by the authorised officer to the
person who is questioned as soon as practicable after it is made.
(4) A record may be made under this section despite the provisions of any other law.
Division 4 Entry to premises
94 Powers of authorised officers to enter premises
(1) An authorised officer may enter any premises at any reasonable hour in the daytime
or at any hour during which business is in progress or is usually carried on at the
premises.
(2) A power to enter premises conferred by this Act authorises entry by foot, vehicle,
vessel or aircraft or by any other means.
(3) Entry to any premises may be effected with or without the authority of a search
warrant.
(4) When exercising a power of entry under this Part, an authorised officer may be
accompanied by any assistants that the authorised officer considers necessary.
95 Entry into residential premises only with permission or warrant
This Division does not empower an authorised officer to enter any part of premises
used only for residential purposes without the permission of the occupier or the
authority of a search warrant.
96 Search warrants
(1) An authorised officer under this Act may apply to an issuing officer for the issue of
a search warrant if the authorised officer believes on reasonable grounds that:
(a) a requirement imposed by or under this Act is being or has been contravened
at any premises, or
(b) there is, in or on any premises, matter or a thing that is connected with an
offence under this Act or the regulations.
(2) An issuing officer to whom an application is made may, if satisfied that there are
reasonable grounds for doing so, issue a search warrant authorising an authorised
officer named in the warrant:
(a) to enter the premises, and
(b) to exercise any function of an authorised officer under this Part.
(3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002
applies to a search warrant issued under this section.
(4) Without limiting the generality of section 71 of the Law Enforcement (Powers and
Responsibilities) Act 2002, a police officer:
(a) may accompany an authorised officer executing a search warrant issued under
this section, and
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Part 7 Powers of authorised officers
(b) may take all reasonable steps to assist the authorised officer in the exercise of
the officer's functions under this section.
(5) In this section:
issuing officer means an authorised officer within the meaning of the Law
Enforcement (Powers and Responsibilities) Act 2002.
97 Requiring assistance
(1) An authorised officer may direct the owner or occupier of premises, or any person in
or on premises (other than a public place), to provide any reasonable assistance that
the authorised officer specifies for the purposes of exercising the authorised officer's
functions under this Division with respect to those premises.
(2) The direction may be given orally to the person or by written notice served on the
person.
98 Powers that may be exercised on premises
(1) An authorised officer may, at any premises lawfully entered, do anything that in the
opinion of the authorised officer is necessary to be done for an authorised purpose,
including (but not limited to) the things specified in subsection (2).
(2) An authorised officer may do any or all of the following:
(a) examine and inspect any thing,
(b) take and remove samples of a thing,
(c) direct a reasonably qualified person to open, cut into or pull down any work if
the authorised officer has reason to believe or suspect that the work or
something contained in the work is in contravention of the certification
legislation,
(d) make any examinations, inquiries, measurements or tests that the authorised
officer considers necessary,
(e) take any photographs or other recordings that the authorised officer considers
necessary,
(f) direct a person to produce records for inspection,
(g) examine and inspect any records,
(h) copy any records,
(i) seize any thing that the authorised officer has reasonable grounds for believing
is connected with an offence against the certification legislation,
(j) move any seized thing from the place where it is seized or leave it at the place
where it is seized and take reasonable action to restrict access to the thing,
(k) direct the occupier of the premises where a thing is seized to retain it at those
premises or at another place under the control of the occupier,
(l) do anything else authorised by or under this Act.
(3) The power to examine and inspect any thing includes a power to use reasonable force
to break open or otherwise access anything, including a floor or wall containing the
thing.
(4) The power to seize any thing connected with an offence includes a power to seize:
(a) a thing with respect to which the offence has been committed, and
(b) a thing that will afford evidence of the commission of the offence, and
(c) a thing that was used for the purpose of committing the offence.
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Part 7 Powers of authorised officers
(5) The power to do a thing under this section includes a power to arrange for that thing
to be done.
(6) A power to do something under this section with respect to a thing may be exercised
without the consent of the owner of the thing.
(7) In this section, a reference to an offence includes a reference to an offence that there
are reasonable grounds for believing has been committed.
Division 5 Miscellaneous
99 Taking possession of records to be used as evidence
(1) If an authorised officer takes possession of any records under this Part for the purpose
of obtaining evidence or protecting evidence from destruction, they may be retained
by the Secretary until the completion of any proceedings (including proceedings on
appeal) in which they may be evidence.
(2) The person from whom the records are taken must be provided, within a reasonable
time after the records are taken, with a copy of the records certified by an authorised
officer as a true copy.
(3) A copy of records provided under this section is, as evidence, of equal validity to the
records of which it is certified to be a copy.
100 Obstruction of authorised officers
A person must not obstruct, hinder or interfere with an authorised officer in the
exercise of the authorised officer's functions under this Part.
Maximum penalty: 1,000 penalty units (in the case of a body corporate) or
200 penalty units (in any other case).
101 Failure to comply with direction
A person must not, without reasonable excuse, fail to comply with a direction of an
authorised officer made in accordance with this Part.
Maximum penalty: 1,000 penalty units (in the case of a body corporate) or
200 penalty units (in any other case).
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Building and Development Certifiers Bill 2018 [NSW]
Part 8 Other functions of the Secretary
Part 8 Other functions of the Secretary
102 Register of registrations and approvals
(1) The Secretary is to maintain a register of the particulars of registrations and approvals
as are required to be kept in the register by the regulations.
(2) The register is to be in the form determined by the Secretary and is to be freely
available on the internet for inspection by the public.
(3) Without limiting the particulars that may be prescribed by the regulations with
respect to the register, the regulations may require that the register include any of the
following particulars with respect to registration or approval:
(a) details of the registration or approval including details of the holder of the
registration or approval,
(b) the results of any relevant disciplinary determination,
(c) the results of any prosecutions under this Act,
(d) details of any penalty notices issued,
(e) any instance of non-compliance with an order of the Secretary or the Tribunal
to do work or to pay money,
(f) details of any warning notices published under this Part,
(g) details of any conditions on the registration or approval,
(h) details of any cancellation or suspension of the registration or approval.
(4) The Secretary may remove any particular from, or otherwise amend, the register if
the particular is, in the opinion of the Secretary, false, erroneous, misleading or
unfairly prejudicial to the interests of the holder of the registration or approval
concerned.
103 Warning notices
(1) The Secretary may authorise publication of a notice (a warning notice) warning
persons of particular risks involved in dealing with:
(a) a specified registered certifier, former registered certifier, accreditation
authority or former accreditation authority, or
(b) any other person that the Secretary reasonably believes may have breached
this Act or the regulations.
(2) The Secretary may authorise publication of a warning notice in any one or more of
the following ways:
(a) to any person making inquiries to the Secretary about the person concerned,
(b) by advertisement by the use of any medium,
(c) to any media representatives.
(3) Publication of a warning notice may be authorised whether or not a complaint has
been made. However, the Secretary must conduct an investigation before authorising
the publication.
(4) Before authorising publication of a warning notice, the Secretary must give the
person concerned an opportunity for a period of not less than 2 business days to make
representations to the Secretary about publication of the warning notice, unless:
(a) the Secretary, after making reasonable efforts to do so, is not able to contact
the person promptly and advise the person of that opportunity, or
(b) the person refuses to make any representations.
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Part 8 Other functions of the Secretary
(5) However, no opportunity to make representations is required to be given if, in the
opinion of the Secretary, there is an immediate risk to the public.
(6) No liability is incurred by a person for publishing in good faith:
(a) a warning notice under this section, or
(b) a fair report or summary of a warning notice.
104 Undertakings
The Secretary may accept a written undertaking from a registered certifier as to the
manner in which the registered certifier will carry out certification work or conduct
the registered certifier's business as a registered certifier (or both).
Note. Part 4 provides that a breach of an undertaking is grounds for taking disciplinary action
against a registered certifier.
105 Applying for injunctions
(1) On the application of the Secretary, the Land and Environment Court may grant an
injunction restraining a threatened or apprehended contravention, or the continuation
of a contravention, of a provision of this Act or the regulations.
(2) An injunction may be granted without the Secretary being required to show a
likelihood of damage.
(3) If in the opinion of the Court it is desirable to do so, the Court may grant an interim
injunction pending determination of the application.
(4) When the Secretary makes an application for the grant of an injunction under this
section, the Court is not to require the Secretary or any other person, as a condition
of granting an interim injunction, to give an undertaking as to damages.
106 Complaints, investigations and audits of certifiers and accreditation authorities
(1) The Secretary may, whether or not the Secretary has received a complaint,
investigate:
(a) a registered certifier, former registered certifier, accreditation authority or
former accreditation authority, or
(b) the carrying out of certification work or the exercise of a function of an
accreditation authority, or
(c) any other matter that may constitute a breach of this Act or the regulations.
(2) The Secretary may require that a complaint made to the Secretary about any matter
referred to in subsection (1) (a)-(c) be in a form approved by the Secretary. However,
the Secretary is not required to investigate a matter even if a complaint is made in the
approved form.
(3) The Secretary may conduct an audit of a registered certifier or an accreditation
authority at any time.
(4) This section does not limit any other power that the Secretary may have under this or
any other Act or law to receive a complaint, investigate a matter or conduct an audit.
107 Investigation of councils acting as certifier
(1) The Secretary may investigate the work and activities of a local council in its
capacity as a certifier.
(2) The Secretary may make a decision to undertake an investigation under this section
on the Secretary's own motion or following a complaint relating to the local council
concerned in its capacity as a certifier.
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Part 8 Other functions of the Secretary
(3) The Secretary must prepare a report of the results of any registration investigation
and send a copy of the report to the Chief Executive of the Office of Local
Government and to the local council.
(4) A report furnished to the local council under this section must be presented at the next
meeting of the local council after the report is received.
(5) Within 40 days after it receives a report under this section, a local council must give
written notice to the Chief Executive of the Office of Local Government and to the
Secretary of the things done or proposed to be done to give effect to any
recommendations contained in the report and may make submissions with respect to
any matter contained in the report.
(6) The Secretary must take into account any submissions received in accordance with
subsection (5) and may revise the report.
(7) If the Secretary revises the report, the Secretary must send a copy of the revised
report to the Chief Executive of the Office of Local Government and to the local
council.
(8) The Secretary is to make a copy of the report in the final form publicly available.
(9) Nothing in this section prevents the Secretary from taking disciplinary action under
Part 4 against a registered certifier if the Secretary is satisfied, as a result of an
investigation under this section, that there may be grounds for doing so.
108 Exchange of information
(1) The Secretary may enter into an arrangement with a relevant agency for the purpose
of sharing or exchanging information held by the Secretary or the agency.
(2) The information to which an arrangement may relate is limited to information that is
reasonably necessary to:
(a) assist in the exercise of the functions of the Secretary, or
(b) assist in the exercise of a relevant function by the relevant agency.
(3) Under an arrangement, each party to the arrangement is authorised:
(a) to disclose information to another party to the arrangement, and
(b) to request and receive information held by another party to the arrangement.
(4) This section does not:
(a) require the Secretary to provide information to a relevant agency only in
accordance with an arrangement under this section if that information can
otherwise be lawfully provided, or
(b) limit the operation of any other Act or law under which a relevant agency is
authorised or required to request and receive, or disclose, information to
another person or body.
(5) The authority to request and receive, or to disclose, information under this section is
subject to the Privacy and Personal Information Protection Act 1998 and the Health
Records and Information Privacy Act 2002.
(6) In this section:
relevant agency means:
(a) a local council, or
(b) an agency of this or any other Australian jurisdiction that exercises, under
legislation, a relevant function, or
(c) an insurer that provides insurance required by this Act, or
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Part 8 Other functions of the Secretary
(d) any other person or body prescribed by the regulations.
relevant function means a function in connection with:
(a) registration, an approval or an equivalent authorisation, or
(b) the regulation of certification work, building work or work authorised to be
carried out under an equivalent authorisation, or
(c) insurance required by or under this Act or required by law with respect to
building work or an equivalent authorisation, or
(d) any other function prescribed by the regulations.
109 Secretary may require information about insurance policies
(1) The Secretary may direct a person that issues an insurance policy to a registered
certifier with respect to certification work (a certifier policy), to provide to the
Secretary any of the following information about certifier policies or particular
classes of certifier policies issued by the person as may be specified by the Secretary:
(a) the terms of the policies,
(b) the premiums payable,
(c) the number of policies issued,
(d) the registered certifiers to whom policies have been issued,
(e) the number and value of claims made under the policies,
(f) any other information prescribed by the regulations.
(2) The Secretary may direct that the information under subsection (1) be provided in the
time specified in the direction.
(3) A direction under this section must be given in writing.
(4) A person must not fail to comply with a direction given to the person under this
section.
Maximum penalty: 500 penalty units.
110 Secretary may exercise functions of an accreditation authority
(1) The Secretary may exercise the functions of an accreditation authority.
(2) Before exercising any accreditation authority function the Secretary is to adopt an
accreditation scheme that complies with section 79 and is to exercise those functions
in accordance with that scheme.
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Part 9 Miscellaneous
Part 9 Miscellaneous
111 Disclosure and misuse of information
(1) A person must not disclose any information obtained in connection with the
administration or execution of this Act unless that disclosure is made:
(a) with the consent of the person from whom the information was obtained, or
(b) in connection with the administration or execution of this Act, or
(c) for the purposes of any disciplinary or legal proceedings arising out of this Act
or of any report of any registration proceedings, or
(d) in accordance with a requirement imposed under the Ombudsman Act 1974, or
(e) with other lawful excuse.
(2) A person acting in the administration or execution of this Act must not use, either
directly or indirectly, information acquired by the person in that capacity, being
information that is not generally known but if generally known might reasonably be
expected to affect materially the market value or price of any land, for the purpose of
gaining either directly or indirectly an advantage for the person, or a person with
whom the person is associated.
(3) A person acting in the administration or execution of this Act, and being in a position
to do so, must not, for the purpose of gaining either directly or indirectly an
advantage for the person, or another person with whom the person is associated,
influence:
(a) the determination of a development application, or
(b) the carrying out of any certification work, or
(c) the giving of a development control order under Division 9.3 of the
Environmental Planning and Assessment Act 1979.
(4) In this section, a person is associated with another person if the person is the spouse,
de facto partner, sibling, parent or child of the other person.
Maximum penalty: 50 penalty units.
112 Responsibilities of councils carrying out certain prescribed certification work
(1) A local council must ensure that any certification work of a class prescribed by the
regulations that is carried out on behalf of the local council is carried out by a
registered individual whose registration authorises the individual to carry out that
certification work.
Maximum penalty: 1,000 penalty units.
(2) A local council is taken to satisfy subsection (1) if it engages a registered body
corporate to carry out the certification work.
(3) The Secretary may, with the approval of the Minister, exempt a local council by
written notice given to the local council from the requirements of subsection (1).
(4) The approval of the Minister:
(a) may be given with respect to a particular case or a class of cases, and
(b) may be subject to conditions, and
(c) may be amended from time to time.
(5) Any exemption given under this section:
(a) may be limited in time or subject to conditions, or both, and
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(b) may be revoked by the Secretary by written notice given to the local council
and must be revoked if the relevant approval of the Minister is no longer in
force.
113 Delegation
The Secretary may delegate the exercise of any function of the Secretary under this
Act (other than this power of delegation):
(a) to any person employed in the Department, or
(b) to any person, or any class of persons, authorised for the purposes of this
section by the regulations.
114 Personal liability
(1) A matter or thing done or omitted to be done by the following persons does not, if the
matter or thing was done or omitted to be done in good faith for the purpose of
exercising a function under this Act, subject the person to any action, liability, claim
or demand:
(a) the Secretary,
(b) an authorised officer,
(c) a person acting under the direction of the Secretary or an authorised officer.
(2) However, any such liability attaches instead to the Crown.
115 Offences by bodies corporate
(1) If a body corporate contravenes, whether by act or omission, any provision of this
Act or the regulations, each person who is a director of the body corporate or who is
concerned in the management of the body corporate is taken to have contravened the
same provision if the person knowingly authorised or permitted the contravention.
(2) A person may be proceeded against and convicted under a provision pursuant to
subsection (1) whether or not the body corporate has been proceeded against or been
convicted under that provision.
(3) Nothing in this section affects any liability imposed on a body corporate for an
offence committed by the body corporate against this Act or the regulations.
116 Service of documents
(1) A document that is authorised or required by this Act or the regulations to be served
on any person may be served by any of the following methods:
(a) in the case of an individual--by personal delivery to the person,
(b) by post to the address specified by the person for the service of documents of
that kind,
(c) in the case of an individual who has not specified such an address--by post to
the residential or business address of the person last known to the person
serving the document,
(d) in the case of a body corporate--by post to the registered office or any other
office of the body corporate or by leaving it at any such office with a person
apparently over the age of 16 years,
(e) by email to an email address specified by the person for the service of
documents of that kind,
(f) by any other method authorised by the regulations for the service of
documents of that kind.
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Building and Development Certifiers Bill 2018 [NSW]
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(2) Nothing in this section affects the operation of any provision of a law or of the rules
of a court authorising a document to be served on a person by any other method.
(3) In this section, serve includes give or send.
117 Certificate evidence of certain matters
(1) A document signed by the Secretary (or by an officer prescribed by the regulations)
and certifying any one or more of the relevant matters specified in subsection (2) is
admissible in criminal or civil proceedings under this Act and (in the absence of
evidence to the contrary) is evidence of the matters so certified.
(2) The relevant matters are as follows:
(a) that a specified person was or was not, at a specified time or during a specified
period, a registered certifier,
(b) that registration held by a specified person was or was not, at a specified time
or during a specified period, subject to a specified condition or was or was not
suspended,
(c) that a specified person was or was not, at a specified time or during a specified
period, an accreditation authority,
(d) that an approval held by a specified person was or was not, at a specified time
or during a specified period, subject to a specified condition or was or was not
suspended,
(e) that a specified person was or was not, at a specified time or during a specified
period, an authorised officer,
(f) that any particular or other matter was or was not, at a specified time or during
a specified period, included on the register,
(g) any other matter prescribed by the regulations.
118 Penalty notices
(1) A penalty notice officer may issue a penalty notice to a person if it appears to the
officer that the person has committed a penalty notice offence.
(2) A penalty notice offence is an offence against this Act or the regulations that is
prescribed by the regulations as a penalty notice offence.
(3) The Fines Act 1996 applies to a penalty notice issued under this section.
Note. The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish
to have the matter determined by a court, the person may pay the amount specified in the
notice and is not liable to any further proceedings for the alleged offence.
(4) However, section 22A (1) of the Fines Act 1996 does not apply in relation to
disciplinary action under this Act.
(5) The amount payable under a penalty notice issued under this section is the amount
prescribed for the alleged offence by the regulations (not exceeding the maximum
amount of penalty that could be imposed for the offence by a court).
(6) This section does not limit the operation of any other provision of, or made under,
this or any other Act relating to proceedings that may be taken in respect of offences.
(7) In this section, penalty notice officer means any of the following designated by the
Secretary as a penalty notice officer for the purposes of this section:
(a) a member of staff of the Department,
(b) a member of staff of a local council,
(c) a person prescribed by the regulations.
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119 Proceedings for offences
(1) Proceedings for an offence against this Act may be taken before the Local Court or
before the Land and Environment Court in its summary jurisdiction.
(2) Proceedings for an offence against the regulations may be taken before the Local
Court.
(3) If proceedings in respect of an offence against this Act are brought in the Local
Court, the maximum monetary penalty that the Court may impose in respect of the
offence is, despite any other provisions of this Act, 1,000 penalty units or the
maximum monetary penalty provided by this Act in respect of the offence,
whichever is the lesser.
(4) If proceedings in respect of an offence against this Act are brought in the Land and
Environment Court in its summary jurisdiction, that Court may impose a penalty not
exceeding the maximum penalty provided by this Act in respect of the offence.
(5) Despite the Criminal Procedure Act 1986 or any other Act, proceedings for an
offence against this Act or the regulations may be commenced not later than 3 years
after the date alleged to be the date on which the offence was committed.
120 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with
respect to any matter that by this Act is required or permitted to be prescribed or that
is necessary or convenient to be prescribed for carrying out or giving effect to this
Act.
(2) Without limiting subsection (1), the regulations may make provision with respect to
the following:
(a) the qualifications, skills and experience required to hold registration or
approval, including the approval of courses of training and the approval of
persons to conduct the training or to assess persons undergoing the training,
(b) the insurance required to be held in order to exercise functions under this Act,
(c) the keeping of records and the provision of information to the Secretary by
registered certifiers and local councils with respect to:
(i) certification work, including information about individuals carrying out
certification work on behalf of the registered certifier or local council,
or
(ii) building work and matters related to building work,
(d) the keeping of records and the provision of information to the Secretary by
accreditation authorities with respect to the exercise of their functions
(including information about individuals exercising functions on behalf of the
accreditation authority),
(e) the fees payable under this Act or the regulations and the refund, reduction or
waiver of any fees.
(3) A regulation may apply, adopt or incorporate any publication as in force at a
particular time or as in force from time to time.
(4) The regulations may exempt specified persons or bodies or classes of persons or
bodies, or specified certification work or classes of certification work, or specified
registrations or approvals or classes of registration or approval, from any specified
provision of this Act.
(5) A regulation may create an offence punishable by a penalty not exceeding
200 penalty units in the case of a body corporate or 100 penalty units in any other
case.
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121 Repeals
The following are repealed:
(a) Building Professionals Act 2005 No 115,
(b) Building Professionals Amendment Act 2008 No 37,
(c) Building Professionals Regulation 2007.
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Building and Development Certifiers Bill 2018 [NSW]
Schedule 1 Savings, transitional and other provisions
Schedule 1 Savings, transitional and other provisions
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent
on the enactment of this Act or any Act that amends this Act.
(2) Any such provision:
(a) may, if the regulations so provide, take effect from the date of assent to the Act
concerned or a later date, and
(b) has effect despite anything to the contrary in this Schedule.
(3) To the extent to which any such provision takes effect from a date that is earlier than
the date of its publication on the NSW legislation website, the provision does not
operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an
authority of the State), the rights of that person existing before the date of its
publication, or
(b) to impose liabilities on any person (other than the State or an authority of the
State) in respect of anything done or omitted to be done before the date of its
publication.
(4) Without limiting subclauses (1) and (2), regulations made for the purposes of this
clause may amend this Schedule to provide for additional or different savings and
transitional provisions instead of including the provisions in the regulations.
Part 2 Provisions consequent on enactment of this Act
2 Definitions
In this Part:
existing certificate of accreditation means a certificate of accreditation under the
former Act.
former Act means the Building Professionals Act 2005.
repeal day means the day on which the former Act is repealed.
3 Saving of existing certificates of accreditation
(1) Subject to the regulations, an existing certificate of accreditation that is in force
immediately before the repeal day:
(a) is taken to be registration in the corresponding class (as prescribed by the
regulations) granted under this Act, and
(b) continues, unless it is sooner surrendered by the holder or suspended or
revoked under this Act, in force for the unexpired portion of its term, and
(c) cannot be renewed.
(2) The conditions to which an existing certificate of accreditation is subject are, subject
to the regulations, taken to be conditions imposed by the Secretary under this Act and
the conditions may be varied or revoked in accordance with this Act.
(3) An existing certificate of accreditation that, on the repeal day, is suspended is taken
to be in force for the purposes of subclause (1) but the suspension continues for the
unexpired portion of its term.
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Schedule 1 Savings, transitional and other provisions
4 Pending applications
(1) An application for an existing certificate of accreditation that was made under the
former Act and that was not determined before the repeal day is taken to be an
application for registration in the corresponding class (as determined under clause 3)
made to the Secretary under this Act and is to be dealt with accordingly subject to the
other provisions of this clause.
(2) Any fee paid under the former Act with respect to the application for the existing
certificate of accreditation is taken to have been paid towards the application that is
taken to have been made under this Act and any difference between the fee paid and
the appropriate fee required to be paid under this Act is to be addressed by requiring
the applicant to pay the balance of any underpayment or refunding to the applicant
the balance of any overpayment.
5 Appeals and reviews
(1) Any appeal made, or review commenced, with respect to an existing certificate of
accreditation (or an application for an existing certificate of accreditation) that has
not been determined before the repeal day is to be determined as if the former Act
and the Building Professionals Regulation 2007 had not been repealed.
(2) Clause 3 applies to the existing certificate of accreditation as in force following the
appeal or review.
6 Offences under Building Professionals Act 2005 are relevant offences
In this Act, a reference to a relevant offence is taken to include a reference to an
offence against the former Act or the regulations made under that Act.
7 Disciplinary action
(1) Conduct of an accredited certifier occurring before the repeal day that is
unsatisfactory professional conduct or professional misconduct under the former Act
is a ground for taking disciplinary action under Part 4 of this Act.
(2) Any complaint made to the Building Professionals Board under the former Act that
has not been finally resolved by the repeal day is taken to be a complaint made to the
Secretary under Part 4 of this Act and may be dealt with accordingly.
(3) With respect to a matter to which, because of this clause, Part 4 of this Act applies,
the Secretary may rely on any step taken by the Building Professionals Board under
the former Act as if it were an equivalent step taken by the Secretary under Part 4 of
this Act.
8 Dissolution of Building Professionals Board
(1) The Building Professionals Board is dissolved on the repeal of section 75 of the
former Act.
(2) On the dissolution of the Building Professionals Board, the assets, rights and
liabilities of the Building Professionals Board immediately before its dissolution
become the assets, rights and liabilities of the Crown.
(3) The persons who were members of the Building Professionals Board immediately
before its dissolution cease to be members and are not entitled to any remuneration
or compensation because of the loss of that office.
(4) In this clause:
assets means any legal or equitable estate or interest (whether present or future,
whether vested or contingent and whether personal or assignable) in real or personal
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Schedule 1 Savings, transitional and other provisions
property of any description (including money), and includes securities, choses in
action and documents.
liabilities means any liabilities, debts or obligations (whether present or future,
whether vested or contingent and whether personal or assignable).
rights means any rights, powers, privileges or immunities (whether present or future,
whether vested or contingent and whether personal or assignable).
9 Investigations into councils
Any investigation commenced by the Building Professionals Board under section 45
of the former Act but not finalised on the dissolution of the Board is taken to have
been an investigation commenced by the Secretary under section 107 of this Act and
may be carried on by the Secretary.
10 Requirement that certification work be carried out under written contract
Section 31 does not apply to a registered certifier with respect to certification work
if the registered certifier (or the registered certifier's employer) was appointed to
carry out the certification work before the commencement of that section.
11 Principal certifier to notify client of certain changes
Section 33 applies to a person whether or not the person was appointed as a principal
certifier before the commencement of that section.
12 Abolition of Building Professionals Board Fund
(1) The Building Professionals Board Fund (the former fund) under the former Act is
abolished on the repeal of section 81 of the former Act.
(2) Any balance standing to the credit of the former fund is to be transferred to the
Secretary.
(3) Any money that was payable into the former fund immediately before its abolition is
to be paid to the Secretary.
13 Registered body corporate with insufficient registered directors
(1) The Secretary may grant an exemption to a registered body corporate from the
requirements of section 41 (1) if satisfied that the body corporate is taking steps to
comply with that provision.
(2) Each exemption granted under this section remains in force for 6 months or a shorter
period that the Secretary may determine.
(3) More than 1 exemption may be granted to a registered body corporate under this
clause.
14 Existing competent fire safety practitioners
(1) A person who immediately before the repeal of clause 167A of the Environmental
Planning and Assessment Regulation 2000 was recognised by the Secretary as a
competent fire safety practitioner for the purposes of one or more provisions of that
Regulation is taken to hold an accreditation under this Act that authorises the person
to carry out the regulated work under the provisions of that Regulation to which the
recognition related.
(2) The accreditation remains in force for the period for which the recognition would
have remained in force had clause 167A of that Regulation not been repealed, or for
5 years from that repeal (whichever is the shorter period), but may be cancelled or
suspended in accordance with this Act before the end of that period.
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Schedule 1 Savings, transitional and other provisions
(3) The Secretary is taken to be the regulating accreditation authority in respect of the
accreditation until the Secretary gives a direction under section 56 (4) with respect to
the accreditation.
(4) For the purposes of this clause, the Secretary may exercise any function of an
accreditation authority even if the Secretary has not adopted an accreditation scheme.
(5) Any reference to a competent fire safety practitioner is taken to include a reference
to an accredited practitioner (fire safety) within the meaning of the Environmental
Planning and Assessment Regulation 2000.
15 Fast track initial approval for existing training organisations
(1) The Secretary may grant an approval as an accreditation authority to a body corporate
that trained a person who is taken (under clause 14) to hold an accreditation.
(2) Part 6 of this Act (other than sections 62 and 63) applies to an approval granted under
this clause.
(3) In determining to grant an approval under this clause, the Secretary only needs to be
satisfied that the body corporate provided training that enabled a person to be
recognised by the Secretary as a competent fire safety practitioner.
(4) The fact that a body corporate is not a body corporate of a kind referred to in
section 59 (1) does not prevent an approval being granted under this clause.
(5) An approval granted under this clause cannot be renewed under this clause and must
instead be renewed under Part 6 of this Act.
16 References to matters in the Building Professionals Act 2005
(1) In any Act or instrument a reference to a term (within the meaning of the former Act)
set out in the table to this clause is taken to include a reference to the corresponding
term within the meaning of this Act:
Term under former Act Corresponding term under this Act
accredited body corporate registered body corporate
accredited certifier registered certifier
Building Professionals Board the Secretary
(2) In any Act or instrument, a reference to accreditation of a particular class is taken to
include a reference to registration in the corresponding class (as determined under
clause 3).
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Building and Development Certifiers Bill 2018 [NSW]
Schedule 2 Amendment of Home Building Act 1989 No 147
Schedule 2 Amendment of Home Building Act 1989 No 147
[1] Part 2, Division 1A
Insert after Division 1 of Part 2:
Division 1A Additional requirements for certain contracts if certifier
required
11A Application of Division
(1) This Division applies to a contract under which the holder of a contractor
licence undertakes:
(a) to do, in person, or by others, any residential building work or any
specialist work, or
(b) to vary any such undertaking to do residential building work or any
specialist work or the way in which any such work is to be done,
but only if a registered certifier will be required with respect to some or all of
the work.
(2) Despite subsection (1), this Division does not apply to the following:
(a) a contract to do residential building work entered into between the
holder of a contractor licence and a developer with respect to the work,
(b) a contract for which the contract price does not exceed the prescribed
amount or (if the contract price is not known) the reasonable market cost
of the labour and materials involved does not exceed the prescribed
amount,
(c) a contract of a class prescribed by the regulations.
(3) The requirements of this Division apply in addition to any requirements of
Division 1.
(4) In this section:
prescribed amount is the amount prescribed by the regulations for the
purposes of section 7AAA and is inclusive of GST.
11B Consumer information--certifiers
A holder of a contractor licence must, before entering into a contract, give to
the other party to the contract information, in a form approved by the
Secretary, that explains the role of a registered certifier.
Maximum penalty: 40 penalty units in the case of a corporation and 20 penalty
units in any other case.
11C Undue influence relating to appointment of certifiers
(1) A holder of a contractor licence must not unduly influence (or attempt to
unduly influence) a person with whom the contractor enters a contract, in the
appointment by that person of a registered certifier to carry out certification
work with respect to work to be carried out under the contract.
Maximum penalty: 1,000 penalty units in the case of a corporation and
300 penalty units in any other case.
(2) Without limiting subsection (1), a holder of a contractor licence is taken to
have attempted to unduly influence a person in the appointment of a registered
certifier if the holder of the contractor licence:
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Schedule 2 Amendment of Home Building Act 1989 No 147
(a) made it a requirement of entering the contract that a specified registered
certifier or class of registered certifier was or was not be appointed, or
(b) offered to change the contract price if a specified registered certifier or
class of registered certifier would be or would not be appointed, or
(c) refuses to carry out work under the contract if a specified registered
certifier or class of registered certifier is or is not appointed.
11D Terms of contract
A contract must include (and is taken to include) each of the terms set out in
Part 1A of Schedule 2. A contract that contains a term that is inconsistent with
a term set out in Part 1A of Schedule 2 is unenforceable to the extent of the
inconsistency.
11E Provisions not to apply where health or safety or property at risk
However, sections 11B and 11D do not apply to a contract to do residential
building work or specialist work in circumstances that:
(a) if the work were not to be done promptly, there is likely to be a hazard
to the health or safety of any person or to the public or to be damage to
property, and
(b) the work could not be done promptly if the requirements of the
particular section were to be complied with before commencing the
work.
[2] Schedule 1 Definitions and other interpretative provisions
Insert in alphabetical order in clause 1 (1):
registered certifier has the same meaning as in the Building and Development
Certifiers Act 2018.
[3] Schedule 2 Terms to be included in certain contracts
Insert ", 11D" after "(Sections 7E".
[4] Schedule 2, Part 1A
Insert after Part 1:
Part 1A Contracts for work requiring certifiers
2A Selection of registered certifier
(1) The contractor will notify the owner if a registered certifier is required with
respect to particular work done under this contract.
(2) The selection of a registered certifier is the sole responsibility of the owner
(subject to section 6.6 (4A) or 6.12 (4A) of the Environmental Planning and
Assessment Act 1979).
(3) The contractor will not object to the selection by the owner of any particular
registered certifier.
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Schedule 2 Amendment of Home Building Act 1989 No 147
[5] Schedule 4 Savings and transitional provisions
Insert at the end of the Schedule, with appropriate Part and clause numbering:
Part Provisions consequent on enactment of Building
and Development Certifiers Act 2018
Undue influence relating to appointment of certifiers
Section 11C applies to the appointment of a registered certifier that occurs
after the commencement of that section even if the relevant contract was
entered before that commencement.
Term of contract regarding certifier
Section 11D does not apply to a contract entered before the commencement of
that section.
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Building and Development Certifiers Bill 2018 [NSW]
Schedule 3 Amendment of other Acts and instruments
Schedule 3 Amendment of other Acts and instruments
3.1 Administrative Decisions Review Regulation 2014
[1] Clause 4 Administratively reviewable decisions excluded from requirement to
provide reasons
Omit the clause.
[2] Clause 5 Administratively reviewable decisions excluded from internal review
Omit the matter relating to the Building Professionals Act 2005 from the Table to the clause.
3.2 Civil and Administrative Tribunal Act 2013 No 2
[1] Schedule 5 Occupational Division
Omit "Building Professionals Act 2005" from clause 4 (1).
Insert instead "Building and Development Certifiers Act 2018".
[2] Schedule 5, clause 28 (1) (b)
Omit the paragraph. Insert instead:
(b) a decision for the purposes of the Building and Development Certifiers
Act 2018 concerning a registered certifier or an accreditation authority
or a former registered certifier or former accreditation authority,
[3] Schedule 5, clause 29 (1) (c)
Omit "Building Professionals Act 2005".
Insert instead "Building and Development Certifiers Act 2018".
3.3 Environmental Planning and Assessment Act 1979 No 203
[1] Section 1.4 Definitions
Omit the definitions of accredited certifier and Building Professionals Board from
section 1.4 (1).
Insert in alphabetical order:
registered certifier means a person registered under the Building and
Development Certifiers Act 2018 acting in respect of matters to which the
registration applies.
Registration Secretary means the Secretary within the meaning of the
Building and Development Certifiers Act 2018.
[2] Section 1.4 (1), definition of "certifier"
Omit the note. Insert instead:
Note. Under Part 6, a certifier is a council or a person registered as a registered certifier
under the Building and Development Certifiers Act 2018 acting in respect of matters to
which the registration applies.
[3] Section 1.5 Meaning of "development"
Omit "accredited certifier" from paragraph (b) (i) of the note to section 1.5 (3).
Insert instead "registered certifier".
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Schedule 3 Amendment of other Acts and instruments
[4] Sections 4.16 (12), 4.28 (2), (5), (6) and (7), 4.57 (2), 6.5 (3) (a), 7.21 (1) and (1A), 9.33 (1)
and 9.35 (1) (c)
Omit "an accredited certifier" wherever occurring. Insert instead "a registered certifier".
[5] Sections 4.28 (1), (3), (4), (8), (9), (10A) and (11) (a), (b) and (c), 7.21 (1) (a) and 9.33 (2)
Omit "accredited certifier" wherever occurring. Insert instead "registered certifier".
[6] Section 4.64 Regulations--Part 4
Omit section 4.64 (5) and (6).
[7] Section 6.1 Definitions: Part 6
Omit the definition of accredited certifier.
[8] Section 6.1, definition of "certifier"
Omit "an accredited certifier". Insert instead "a registered certifier".
[9] Section 6.6 Requirements before building work commences
Insert after section 6.6 (4):
(4A) The regulations may, despite subsection (1):
(a) prescribe circumstances in which a principal certifier is to be appointed
by the Registration Secretary, and
(b) prescribe classes of development in which the principal certifier is to be
appointed in a manner prescribed by the regulations (including, but not
limited to, being appointed in accordance with a scheme prescribed by
the regulations), and
(c) require that a council or other person must not refuse to be appointed as
a principal certifier if the appointment is in accordance with a regulation
made under this subsection, and
(d) prescribe the fees that may be charged by principal certifiers for
particular matters or classes of matters, including maximum fees that
may be charged, and
(e) prescribe the circumstances in which an applicant for certification may
request that a different principal certifier be allocated, and
(f) prescribe the circumstances in which the appointment of a principal
certifier may be terminated, and
(g) prescribe the circumstances in which the appointment of a principal
certifier may be revoked or changed by the Registration Secretary, and
(h) despite paragraph (c), prescribe circumstances in which a principal
certifier may refuse appointment, and
(i) provide for any other matter that is ancillary to the scheme under this
subsection.
[10] Section 6.12 Requirements before subdivision work commences
Insert after section 6.12 (4):
(4A) The regulations may, despite subsection (1):
(a) prescribe circumstances in which a principal certifier is to be appointed
by the Registration Secretary, and
(b) prescribe classes of development in which the principal certifier is to be
appointed in a manner prescribed by the regulations (including, but not
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Schedule 3 Amendment of other Acts and instruments
limited to, being appointed in accordance with a scheme prescribed by
the regulations), and
(c) require that a council or other person must not refuse to be appointed as
a principal certifier where the appointment is in accordance with a
regulation made under this subsection, and
(d) prescribe the fees that may be charged by principal certifiers for
particular matters or classes of matters, including maximum fees that
may be charged, and
(e) prescribe the circumstances in which an applicant for certification may
request that a different principal certifier be allocated, and
(f) prescribe the circumstances in which the appointment of a principal
certifier may be terminated, and
(g) prescribe the circumstances in which the appointment of a principal
certifier may be revoked or changed by the Registration Secretary, and
(h) despite paragraph (c), prescribe circumstances in which a principal
certifier may refuse appointment, and
(i) provide for any other matter that is ancillary to the scheme under this
subsection.
[11] Section 9.3 Action that may be taken against council following investigation
Omit "Building Professionals Board" from section 9.3 (1).
Insert instead "Registration Secretary".
[12] Section 9.3 (1)
Omit "section 45 of the Building Professionals Act 2005".
Insert instead "section 107 of the Building and Development Certifiers Act 2018".
[13] Section 9.3 (1) and (2)
Omit "the Board" wherever occurring. Insert instead "the Registration Secretary".
[14] Section 9.3 (1) (b)
Omit the note. Insert instead:
Note. Section 107 of the Building and Development Certifiers Act 2018 enables the
Registration Secretary to investigate the work and activities of a council in its capacity
as a certifier.
[15] Section 10.13 Regulations
Insert ", including the functions to be exercised only by a holder of an accreditation under
the Building and Development Certifiers Act 2018" after "building safety" in
section 10.13 (1) (d).
[16] Schedule 6 Liability in respect of contaminated land
Omit "accredited certifier" from paragraph (a1) of the definition of planning authority in
clause 1.
Insert instead "registered certifier".
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Schedule 3 Amendment of other Acts and instruments
3.4 Environmental Planning and Assessment Regulation 2000
[1] Clause 3 Definitions
Omit the definitions of accredited body corporate, competent fire safety practitioner and
fire safety engineer from clause 3 (1).
Insert in alphabetical order:
accredited practitioner means the holder of an accreditation under the
Building and Development Certifiers Act 2018 that authorises the holder to
exercise the functions of an accredited practitioner.
accredited practitioner (fire safety) means an accredited practitioner whose
class of accreditation authorises the holder to exercise the functions of an
accredited practitioner (fire safety) who is acting in respect of matters to which
the accreditation applies.
fire safety engineer means a person registered under the Building and
Development Certifiers Act 2018 whose registration authorises the person to
exercise the functions of a fire safety engineer.
registered body corporate has the same meaning as in the Building and
Development Certifiers Act 2018.
[2] Clauses 103 (f), 127 (1A), 129B (1), 129C (3) (f) and (g), 130 (2E) (a), 134 (1) (b), (b1)
and (f1) (v), 135 (f), 137 (1) (a) and (2), 138 (1) (b) and (b1), 143B (1), 143C (3) (f) and (g),
147 (1) (b), (b1) and (g) (v), 155 (1) (b), (b1) and (f) (v), 160 (1) (e) and (f), 162A (4A) (a),
162B (4) (e1) and 265 (1) (e)
Omit "an accredited certifier" wherever occurring. Insert instead "a registered certifier".
[3] Clauses 103 (f) (i), 103A (a), 129C (3) (g), 134 (1) (b) and (f1) (v), 135 (f) (i), 138 (1) (b),
143C (3) (g), 147 (1) (b) and (g) (v), 155 (1) (b) and (f) (v), 160 (1) (e), 162B (4) (e1),
162C (3) (d), 264 (2) (l) and 265 (1) (e) and (g)
Omit "accreditation number" wherever occurring. Insert instead "registration number".
[4] Clauses 103 (f) (iii), 126 (1) (c), 129C (3) (f) and (g), 130 (3) and (4), 134 (1) (b1),
135 (f) (iii), 137 (2), 138 (1) (b1), 143C (3) (f) and (g), 147 (1) (b1), 155 (1) (b1), 160 (1) (f)
and 265 (1) (e)
Omit "the accredited certifier" wherever occurring. Insert instead "the registered certifier".
[5] Clauses 126 (2), 127 (1), 128, 129C (1) and (2) and 143C (1) and (2)
Omit "or accredited certifier" wherever occurring. Insert instead "or registered certifier".
[6] Clause 127 (1) and (2)
Omit "accredited certifier's" wherever occurring. Insert instead "registered certifier's".
[7] Clauses 129C (3) (f) and (g), 134 (1) (a) and (b), 138 (1) (a) and (b), 143C (3) (f) and (g),
147 (1) (a) and (b), 155 (1) (a) and (b), 160 (1) (d) and (e) and 162B (4) (e) and (e1)
Omit "an accredited body corporate" wherever occurring.
Insert instead "a registered body corporate".
[8] Clause 130 (2E) (a)
Omit "another accredited certifier". Insert instead "another registered certifier".
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[9] Clauses 130 (5) (a) and (b), 136AA (2) (c) (ii), 144A (3) (a) and (b), 146B (2) (c) (ii),
164B (5) (c), 175 (a) and (b) and 178
Omit "a competent fire safety practitioner" wherever occurring.
Insert instead "an accredited practitioner (fire safety)".
[10] Clauses 134 (1) (f1) (iv) and (v), 147 (1) (g) (iv) and (v), 155 (1) (f) (iv) and (v),
164B (5) (c) and 181 (1) (j)
Omit "the competent fire safety practitioner" wherever occurring.
Insert instead "the accredited practitioner (fire safety)".
[11] Clause 167A Competent fire safety practitioners
Omit the clause.
[12] Clause 246A What is the maximum fee?
Omit clause 246A (2) (i).
[13] Clause 256A Proportion of development application fees to be remitted to Secretary
and Registration Secretary
Omit ", (i) and (j)" from clause 256A (1). Insert instead "and (j)".
[14] Clause 256A (1A)
Omit the subclause. Insert instead:
(1A) The amount referred to in subclause (1) is to be applied by the Secretary to the
services referred to in clause 246A (2) (g), (h) and (j).
[15] Clause 256L Additional fee for planning reform
Omit clause 256L (2) (c).
3.5 Government Information (Public Access) Regulation 2018
Schedule 3 Agencies declared to be part of other agencies
Omit the matter relating to the Building Professionals Board.
3.6 Home Building Regulation 2014
[1] Clause 71A Information sharing
Omit clause 71A (a).
[2] Schedule 2 Checklist for owners entering into contracts for residential building work
worth more than $20,000 (on and from 1 March 2015)
Insert after item 11:
11A Do you understand that any registered certifier required to certify Yes No
work under the contract is to be selected by you and the contractor
cannot object to your selection?
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3.7 Independent Commission Against Corruption Act 1988 No 35
Section 3 Definitions
Omit paragraph (k1) of the definition of public official in section 3 (1). Insert instead:
(k1) an accreditation authority or a registered certifier within the meaning of
the Building and Development Certifiers Act 2018,
3.8 Land and Environment Court Act 1979 No 204
[1] Section 20 Class 4--environmental planning and protection, development contract
and strata renewal plan civil enforcement
Insert after section 20 (dj):
(dk) proceedings under section 105 of the Building and Development
Certifiers Act 2018,
[2] Section 21 Class 5--environmental planning and protection summary enforcement
Insert after section 21 (hf):
(hg) proceedings under section 119 of the Building and Development
Certifiers Act 2018,
3.9 Law Enforcement (Powers and Responsibilities) Act 2002 No 103
Schedule 2 Search warrants under other Acts
Omit "Building Professionals Act 2005, section 57".
Insert in alphabetical order "Building and Development Certifiers Act 2018, section 96".
3.10 Ombudsman Act 1974 No 68
Section 5 Definitions
Omit paragraph (f1) of the definition of public authority in section 5 (1). Insert instead:
(f1) any accreditation authority or registered certifier within the meaning of
the Building and Development Certifiers Act 2018,
3.11 Public Finance and Audit Act 1983 No 152
Schedule 2 Statutory bodies
Omit "Building Professionals Board".
3.12 Public Interest Disclosures Act 1994 No 92
Section 4A Public officials
Omit section 4A (2) (e). Insert instead:
(e) an accreditation authority or a registered certifier (within the meaning
of the Building and Development Certifiers Act 2018).
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Schedule 3 Amendment of other Acts and instruments
3.13 Strata Schemes Development Act 2015 No 51
[1] Section 4 Definitions
Omit the definition of accredited certifier from section 4 (1).
Insert in alphabetical order:
registered certifier means a person registered under the Building and
Development Certifiers Act 2018 acting in respect of matters to which the
registration applies.
[2] Part 4, Division 3, heading
Omit "accredited". Insert instead "registered".
[3] Sections 58-60 and 62 (3)
Omit "An accredited certifier" wherever occurring. Insert instead "A registered certifier".
[4] Sections 61, 62 (5), 63 (2) (a), 65 (4), 69 (2) and 124 (1)
Omit "an accredited certifier" wherever occurring. Insert instead "a registered certifier".
[5] Section 65 Notice of decision
Omit "or accredited certifier" from section 65 (1). Insert instead "or registered certifier".
[6] Part 4, Division 6 Application of Building Professionals Act 2005
Omit the Division.
[7] Section 69 Satisfaction about compliance with conditions precedent to issue of
strata certificates
Omit "the accredited certifier" from section 69 (2). Insert instead "the registered certifier".
[8] Section 70 Regulations
Omit "accredited certifiers" wherever occurring in section 70 (b), (c) and (d).
Insert instead "registered certifiers".
3.14 Strata Schemes Development Regulation 2016
[1] Clause 17 Inspection required prior to issuing a strata certificate
Omit "accredited certifier" from clause 17 (1). Insert instead "registered certifier".
[2] Clause 18 Registered certifier strata certificates
Omit "An accredited certifier" from clause 18 (1). Insert instead "A registered certifier".
[3] Clause 18 (2) and (3)
Omit clause 18 (2). Insert instead:
(2) A registered certifier must cause a copy of each strata certificate issued by the
registered certifier and each application for a strata certificate made to the
registered certifier to be kept at the registered certifier's business premises, or
in another secure place, at all times.
(3) Subclause (2) does not require a registered certifier to keep copies of any
certificate or application for more than 10 years after the date on which the
certificate was issued, or in the case of an application where no certificate was
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Schedule 3 Amendment of other Acts and instruments
issued, for more than 10 years after the date on which the application was
made.
[4] Clause 19 Records to be kept by local councils in respect of strata certificates
Omit "an accredited certifier" from paragraph (b) of the definition of relevant strata
certificate in clause 19 (1).
Insert instead "a registered certifier".
3.15 Swimming Pools Act 1992 No 49
[1] Section 22A Definition
Omit the definition of accredited certifier. Insert instead:
registered certifier means a person registered under the Building and
Development Certifiers Act 2018 acting in respect of matters to which the
registration applies.
[2] Sections 22C (1) and (2), 22D (2), (3) and (4) and 22E (1)
Omit "an accredited certifier" wherever occurring. Insert instead "a registered certifier".
[3] Section 22D Certificates of compliance
Omit "or accredited certifier" wherever occurring in section 22D (2) and (7).
Insert instead "or registered certifier".
[4] Section 22E Notices by registered certifier if pool does not comply
Omit "An accredited certifier" wherever occurring in section 22E (2), (4) and (5).
Insert instead "A registered certifier".
[5] Section 22E (2), (3) (d), (e) and (f) (i) and (4) (a)
Omit "the accredited certifier" wherever occurring. Insert instead "the registered certifier".
3.16 Swimming Pools Regulation 2018
[1] Clause 21 Certificates of non-compliance if pool does not comply
Omit "an accredited certifier" from clause 21 (1). Insert instead "a registered certifier".
[2] Clause 21 (2) and (3) (c)
Omit "or accredited certifier" wherever occurring. Insert instead "or registered certifier".
[3] Clause 26
Omit the clause. Insert instead:
26 Authorised persons who may access Register
Registered certifiers within the meaning of Division 5 of Part 2 of the Act who
carry out work under that Division are prescribed as authorised persons for the
purposes of section 30E of the Act.
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[4] Clause 27 Alternative qualification for accredited certifiers
Omit the clause.
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