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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Building and Construction Industry Security of Payment
(Review) Amendment Bill 2017
A BILL FOR
An Act to amend the
Building
and Construction Industry Security of Payment Act 2009
.
Contents
Part 2—Amendment of Building and
Construction Industry Security of Payment Act 2009
4Amendment of section
4—Interpretation
5Insertion of sections 7A and 7B
6Amendment of section 29—Nominating
authorities
7Insertion of sections 32A and 32B
32AOffence relating
to assault etc in relation to progress payments
32BImputing conduct
to bodies corporate
Schedule 1—Transitional
provisions
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Building and Construction Industry Security
of Payment (Review) Amendment Act 2017.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Building and Construction Industry Security
of Payment Act 2009
4—Amendment
of section 4—Interpretation
(1) Section 4, definition of business day—delete the
definition and substitute:
business day means any day except—
(a) Saturday, Sunday or a public holiday; or
(b) any other day which falls between 22 December in any year and
10 January in the following year (inclusive);
(2) Section 4—after the definition of claimed amount
insert:
Commissioner means the person holding or acting in the office
of Small Business Commissioner;
5—Insertion
of sections 7A and 7B
After section 7 insert:
7A—Administration of Act
The Commissioner is responsible for the administration of this
Act.
7B—Commissioner's functions
The Commissioner has the following functions:
(a) investigating and researching matters affecting the interests of
parties to construction contracts;
(b) publishing determinations of adjudicators in relation to adjudication
applications in a manner determined by the Commissioner;
(c) publishing reports and information on subjects of interest to the
parties to construction contracts;
(d) giving advice (to an appropriate extent) on the provisions of this Act
and other subjects of interest to the parties to construction
contracts;
(e) providing information and facilitating or conducting education
programs relating to the provisions of this Act for the benefit of participants
in the building and construction industry;
(f) making reports to the Minister on questions referred to the
Commissioner by the Minister and other questions of importance affecting the
administration of this Act.
6—Amendment
of section 29—Nominating authorities
(1) Section 29(1) to (3) (inclusive)—delete subsections (1) to (3)
and substitute:
(1) Subject to this
section and the regulations, the Minister may, on application made by any
person, grant the applicant an authority to nominate adjudicators for the
purposes of this Act.
(2) An authority under
subsection (1)
may be granted for a term (not exceeding 5 years) determined by the
Minister.
(3) An authority under
subsection (1)
may be renewed by the Minister from time to time, for a term (not
exceeding 5 years) determined by the Minister, on application by the authorised
nominating authority.
(3a) An application for the grant or renewal of an authority under this
section must be accompanied by the prescribed fee.
(3b) The Minister—
(a) may impose conditions on an authority under
subsection (1)
on granting or renewing the authority; and
(b) may vary or revoke a condition of an authority under
subsection (1)
, or impose further conditions on an authority, at any time by notice in
writing to the authorised nominating authority.
(a) limit the number of persons who may, for the time being, be authorised
under this section; and
(b) refuse an
application under
subsection (1)
if authorising the applicant would result in any such number being
exceeded.
(3d) The Minister may revoke an authority under
subsection (1)
if the Minister is satisfied that the authorised nominating authority has
breached or failed to comply with—
(a) a requirement of this Act or the regulations; or
(b) a condition of the authority.
(2) Section 29(7)—delete subsection (7) and substitute:
(7) An authorised nominating authority must, at the times specified by the
Commissioner, provide the Commissioner with—
(a) a copy of any determination of an adjudicator appointed to determine
an adjudication application on referral of the authority; and
(b) any other information specified by the Commissioner relating to the
activities of the authority under this Act (including information as to the fees
charged by the authority under this Act).
(8) An authorised nominating authority required to provide a determination
of an adjudicator or other information under this section must provide the
determination or information within the time specified by the
Commissioner.
Maximum penalty: $20 000.
(9) An authorised nominating authority cannot be compelled to give
information under this section if the information might tend to incriminate the
authority of an offence or is privileged on the ground of legal professional
privilege.
7—Insertion
of sections 32A and 32B
Before section 33 insert:
32A—Offence relating to assault etc in relation to
progress payments
A person must not directly or indirectly assault, threaten or intimidate,
or attempt to assault, threaten or intimidate, a person in relation to an
entitlement to, or claim for, a progress payment under this Act.
Maximum penalty:
(a) in the case of an individual—$50 000 or imprisonment for
2 years or both;
(b) in the case of a body corporate—$250 000.
32B—Imputing conduct to bodies
corporate
(1) For the purposes of proceedings for an offence against this Act, the
conduct and state of mind of an officer, employee or agent of a body corporate
acting within the scope of his or her actual, usual or ostensible authority will
be imputed to the body corporate.
(2) For the purposes of this section, a reference to conduct
or acting includes a reference to failure to
act.
After section 33 insert:
33A—Immunity from liability
Neither the Commissioner nor the Crown incurs any liability for the
publication by the Commissioner in good faith in accordance with section 7B(b)
of a determination of an adjudicator in relation to an adjudication
application.
Section 36—delete the section
Schedule 1—Transitional
provisions
1—Revocation
of authorisations
(1) The
authorisation of a person who was, immediately before the commencement of this
clause, authorised under section 29 of the principal Act to nominate
adjudicators for the purposes of that Act is, by force of this subclause,
revoked.
(2) Despite
subclause (1)
, an adjudication application made to a person referred to in that
subclause that has not been finally determined before the commencement of this
clause may be continued and completed under the provisions of the principal
Act.
(3) In addition, nothing in
subclause (1)
affects the right of a person referred to in that subclause to recover an
amount payable for services provided under the principal Act in respect of an
application referred to in
subclause (2)
.
(4) In this clause—
principal Act means the
Building
and Construction Industry Security of Payment Act 2009
(as in force immediately before the commencement of this
clause).