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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
(Authorised Nominating Authorities) Amendment
Bill 2016
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
5Amendment of section 17—Adjudication
applications
18BPanel may
recommend removal of adjudicators
7Amendment of section 19—Selection and
appointment of adjudicator
8Amendment of section 24—Consequences of
not paying claimant adjudicated amount
9Amendment of section 26—Claimant may make
new application in certain circumstances
10Amendment of section 27—Claimant may
discontinue adjudication
12Amendment of section 31—Protection from
liability for adjudicators and Small Business Commissioner
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 (Authorised Nominating Authorities) Amendment
Act 2016.
This Act will come into operation 28 days after the day on which it is
assented to by the Governor.
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 adjudication
certificate—delete "an authorised nominating authority" and
substitute:
the Small Business Commissioner
(2) Section 4, definition of adjudication fees—delete
"an authorised nominating authority" and substitute:
the Small Business Commissioner
(3) Section 4—after the definition of adjudicator
insert:
Adjudicator Review Panel or Panel—see
section 18A;
(4) Section 4, definition of authorised nominating
authority—delete the definition
(5) Section 4—after the definition of scheduled amount
insert:
Small Business Commissioner means the Commissioner under the
Small
Business Commissioner Act 2011
.
5—Amendment
of section 17—Adjudication applications
(1) Section 17(3)(b)—delete "an authorised nominating authority
chosen by the claimant" and substitute:
the Small Business Commissioner
(2) Section 17(3)(g)—delete "authorised nominating authority" and
substitute:
Small Business Commissioner
(3) Section 17(6)—delete subsection (6) and substitute:
(6) The Small Business Commissioner must refer an application to an
adjudicator as soon as practicable.
Note—
See section 19.
Section 18—delete the section and substitute:
18—Pool of adjudicators
(1) The Small Business Commissioner must establish a pool of adjudicators
for the purposes of this Act consisting of such number of eligible persons as
the Small Business Commissioner thinks fit.
(2) A person is eligible to be an adjudicator in relation to a
construction contract—
(a) if the person is a natural person; and
(b) if the person has the qualifications, expertise and experience
prescribed by the regulations for the purposes of this section.
(3) The Small Business Commissioner may remove an adjudicator from the
pool of adjudicators for any reason he or she thinks fit.
(4) However, a person is not eligible to be an adjudicator in relation to
a particular construction contract—
(a) if the person is a party to the contract; or
(b) in such circumstances as may be prescribed by regulation for the
purposes of this section.
18A—Adjudicator Review Panel
(1) The Adjudicator Review Panel (the Panel) is
established.
(2) The Panel consists
of 5 persons appointed by the Small Business Commissioner, of
whom—
(a) 1 must be a
person able to represent the interests of contractors in respect of construction
contracts; and
(b) 1 must be a
person able to represent the interests of sub-contractors in respect of
construction contracts.
(3) Subject to this section, a member of the Panel will hold office on
conditions determined by the Small Business Commissioner for a term, not
exceeding 3 years, specified in the instrument of appointment and is, at
the expiration of a term of office, eligible for reappointment.
(4) The Small
Business Commissioner may remove a member of the Panel from
office—
(a) for breach of, or non-compliance with, a condition of appointment;
or
(b) for mental or physical incapacity to carry out duties of office
satisfactorily; or
(c) for neglect of duty; or
(d) for dishonourable conduct.
(5) The office of a member of the Panel becomes vacant if the
member—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice addressed to the Small Business
Commissioner; or
(d) is found guilty of a prescribed offence; or
(e) is removed from office under
subsection (4)
.
(6) The functions of the Panel are—
(a) to oversee the pool of adjudicators appointed under
section 18
for the purpose of ensuring the pool remains appropriate for the purposes
of this Act; and
(b) to inquire into the suitability of individual persons to be, or to
continue to be, adjudicators for the purposes of this Act; and
(c) to make recommendations and give advice to the Small Business
Commissioner in relation to adjudication under this Act; and
(d) to perform such other functions as may conferred on the Panel by the
Small Business Commissioner.
(7) A quorum of the Panel consists of 3 members.
(8) A decision carried by a majority of the votes cast by members of the
Panel at a meeting is a decision of the Panel.
(9) A member of the Panel is entitled to fees, allowances and expenses
approved by the Minister.
(10) Subject to this Act, the Panel may determine its own
procedures.
18B—Panel may recommend removal of
adjudicators
(1) The Adjudicator Review Panel may recommend to the Small Business
Commissioner that a specified person be removed from the pool of adjudicators
established under
section 18
.
(2) A recommendation—
(a) must be in writing; and
(b) may only be made if the Panel is satisfied that it is not appropriate
for the specified person to be, or to continue to be, an adjudicator for the
purposes of this Act; and
(c) must set out the reasons for the recommendation.
(3) The Panel must ensure that a copy of the reasons is provided to the
person to whom the recommendation relates.
(4) The Small Business Commissioner must, unless he or she is of the
opinion that it is not appropriate to do so, remove a person from the pool of
adjudicators established under
section 18
if the Panel so recommends.
(5) A person who is removed from the pool of adjudicators established
under
section 18
on the recommendation of the Panel may apply to the Administrative and
Disciplinary Division of the District Court for a review of the Panel's
recommendation and the Small Business Commissioner's decision to take that
action.
7—Amendment
of section 19—Selection and appointment of
adjudicator
(1) Section 19—before subsection (1) insert:
(a1) In determining to which adjudicator an adjudication application is to
be referred, the Small Business Commissioner is to select an adjudicator
randomly from the pool of adjudicators established under section 18
(disregarding any ineligible adjudicators).
(2) Section 19(1)—delete "an authorised nominating authority" and
substitute:
the Small Business Commissioner
8—Amendment
of section 24—Consequences of not paying claimant adjudicated
amount
(1) Section 24(1)(a)—delete "authorised nominating authority to whom
the adjudication application was made" and substitute:
Small Business Commissioner
(2) Section 24(4)(a)—delete "authorised nominating authority" and
substitute:
Small Business Commissioner
(3) Section 24(5)(a)—delete "authorised nominating authority" and
substitute:
Small Business Commissioner
9—Amendment
of section 26—Claimant may make new application in certain
circumstances
Section 26(2)(a)—delete "authorised nominating authority to whom the
application was made" and substitute:
Small Business Commissioner
10—Amendment
of section 27—Claimant may discontinue adjudication
Section 27(2)(a)—delete "authorised nominating authority to whom the
application was made" and substitute:
Small Business Commissioner
Section 29—delete the section
12—Amendment
of section 31—Protection from liability for adjudicators and Small
Business Commissioner
(1) Section 31(2)—delete "an authorised nominating authority" and
substitute:
the Small Business Commissioner
(2) Section 31(2)—delete "by the authorised nominating
authority"
(3) Section 31(2)(a) and (b)—delete "nominating authority's" and
substitute in each case:
Commissioner's
(4) Section 31—after subsection (2) insert:
(3) No action lies against the Adjudicator Review Panel with respect to
anything done or omitted to be done by the Panel in good faith—
(a) in exercising the Panel’s functions under this Act; or
(b) in the reasonable belief that the thing was done or omitted to be done
in the exercise of the Panel’s functions under this Act.
Schedule 1—Transitional
provisions
1—Withdrawal
of authorisations
(1) The authorisation
of a person who was, immediately before the commencement of this clause,
authorised under section 29 of the
Building
and Construction Industry Security of Payment Act 2009
(as in force before the commencement of this clause) to nominate
adjudicators for the purposes of that Act is, by force of this clause,
withdrawn.
(2) Nothing in this clause affects the right of person contemplated by
subclause (1)
to recover an amount payable for services provided under the
Building
and Construction Industry Security of Payment Act 2009
(as in force before the commencement of this clause).