Tasmanian Bills Clause Notes Tasmanian Bills Clause Notes[Index] [Search] [Download] [Bill] [Help]
CLAUSE NOTES
Building and Construction Industry Security of
Payment Bill 2009
PART 1 PRELIMINARY
Clause 1: Sets out the name (also called the short title) of the
proposed Act.
Clause 2: Provides for the commencement of the proposed Act on
a day or days to be appointed by proclamation.
Clause 3: Sets out the objects of the proposed Act.
Clause 4: Defines certain words and expressions that are used in
the proposed Act. These include the core concepts of
building or construction contract (which means a contract or
other arrangement under which one party undertakes to
carry out building work or construction work for or to
supply building or construction-related goods and services
to, another party), building work or construction work (which
is defined at clause 5) and building or construction-related
goods and services (which is defined at clause 6).
Clause 5: Defines the expressions building work and construction work
for the purposes of the proposed Act. The definition can
be widened or narrowed by regulations under the
proposed Act.
Clause 6: Defines the expressions building or construction-related
goods and services for the purposes of the proposed Act.
The definition can be widened or narrowed by regulations
under the proposed Act.
PART 2 APPLICATION AND EFFECT OF ACT IN
RELATION TO OTHER ACTS, CONTRACTS &
C.
Clause 7: Provides for the application of the proposed Act to all
building or construction contracts, whether written or
oral. Certain classes of contract are excluded from the
proposed Act, as are certain classes of contractual
provisions. Other classes of construction contract can be
excluded from the proposed Act by regulations under the
proposed Act.
Clause 8: Provides that the proposed Act is to bind the Crown.
Clause 9: Ensures that a claimant retains entitlements and remedies
that may be established under a building or construction
contract or elsewhere.
Clause 10: Ensures that nothing done under the proposed Act will
affect any civil proceedings arising under a building or
construction contract, except that a court will be required
to make appropriate set-offs and any orders necessary to
provide for the restitution of money paid as a
consequence of its decision in the proceedings.
Clause 11: Avoids any provision of an agreement that purports to
exclude, modify or restrict the proposed Act.
PART 3 RIGHTS TO PROGRESS PAYMENTS
Clause 12: Provides that on and from each reference date, a person
who has undertaken to carry out building or construction
work, or to supply related goods and services, becomes
entitled to a progress payment. A reference date is a date
ascertained in accordance with the terms of the building
or construction contract as a date for making a claim for a
progress payment or as a date by reference to which the
amount of a progress payment is to be calculated or, if the
contract contains no such terms, on the last day of each
month in which building work or construction work is
carried out or building or construction related goods and
services are supplied, under the contract.
Clause 13: Provides for the manner in which the value of
construction work carried out, or related goods and
services supplied, under a construction contract is to be
valued.
Clause 14: Provides for claimants to exercise a lien in respect to any
unpaid amount over unfixed plant and materials supplied
by the claimant in connection with the building or
construction work being carried out by the respondent.
Clause 15: Provides that a progress payment becomes due and
payable in accordance with the terms of the construction
contract or, if the contract contains no such terms, at the
end of 10 business days after a progress claim is made in
relation to that payment under section 17 of the bill.
Clause 16: Provides that a `pay when paid' provision of a contract has
no effect in relation to construction work carried out, or
related goods and services supplied, under a building or
construction contract. A `pay when paid' provision is a
provision that makes one person's payment dependent on
another person's payment.
PART 4 PAYMENT CLAIMS AND PAYMENT
SCHEDULES
Clause 17: Enables a person who is entitled to a progress payment
under proposed section 12 (the Claimant) to serve a
payment claim on the person who is liable to make the
payment. The claim will set out the amount to which the
claimant claims entitlement.
Clause 18: Enables a person on whom a payment claim is made (the
Respondent) to reply to the claim by providing a payment
schedule to the claimant. The schedule will set out how
much the respondent proposes to pay the claimant and
when.
Clause 19: Provides that a claimant will be able to recover the whole
amount of his or her claim as a debt, and provides the
option to suspend carrying out building or construction
work, or supplying related goods and services, if the
respondent fails to provide a payment schedule within the
time allowed under clause 18.
Clause 20: Provides that a claimant will be able to recover the
amount set out in the respondent's payment schedule, and
provides the option to suspend carrying out building or
construction work, or supplying related goods and
services, where the respondent provides the payment
schedule within the time allowed under clause 18 but fails
to pay that amount by the due date referred to in clause
15.
PART 5 ADJUDICATION OF DISPUTES
Clause 21: Enables a claimant to apply for adjudication of the amount
of a progress payment payable in the event that the
amount set out in the respondent's payment schedule is
less than the amount set out in the claimants payment
claim. The application will have to be made within 10 days
after the claimant receives the payment schedule, and will
be able to be made directly to an authority authorised to
nominate adjudicators for the purposes of the proposed
Act.
Clause 22: Provides that the appointment of an adjudicator is effected
by the adjudicator causing notice of his or her acceptance
of the adjudication application.
Clause 23: Enables the respondent to lodge with an adjudicator the
respondent's response to the claimant's adjudication
application.
Clause 24: Sets out the manner in which, and the time within which,
an adjudicator is to determine an adjudication application.
Enables an adjudicator to obtain further submissions,
undertake an inspection or to call a conference of the
parties to the adjudication.
Clause 25: Provides that the adjudicator is to determine an
adjudication application by determining the amount of the
progress payment to be paid and the date on or before
which it must be paid.
Clause 26: Provides that if the adjudicator determines an amount that
the respondent must pay as a progress payment, the
respondent must pay that amount within 5 business days
of receiving the adjudicator's decision, unless the
adjudicator determines a later date is suitable. If the
respondent does not pay the claimant has the opportunity
to request an adjudication certificate, and to suspend
carrying out construction work, or supplying related
goods and services, while the amount remains unpaid.
Clause 27: Provides that a claimant will be able to recover the
adjudicated amount as a debt in a court.
Clause 28: Enables a claimant to make a new adjudication application
in the event that a previous application is not accepted by
an adjudicator within 4 business days after it is made or if
an adjudicator fails to determine the application within the
time allowed under clause 24.
PART 6 CLAIMANT'S RIGHT TO SUSPEND BUILDING
WORK OR CONSTRUCTION WORK OR
SUPPLY
Clause 29: Entitles a claimant to suspend the carrying out of building
and construction work (or the supply of related goods and
services) if at least 2 business days have passed since
notice of intention to do so has been given as referred to
in clause 19, 20 or 26. A claimant who suspends the
carrying out of building or construction work (or the
supply of related goods and services) under the proposed
section will be immune from civil liability as a consequence
of doing so.
PART 7 ADMINISTRATION
Clause 30: Provides for the establishment of a Security of Payments
Official to appoint Nominating authorities and to monitor
the operation of the proposed Act.
Clause 31: Enables the Security of Payment Official to authorise
persons as nominating authorities (to nominate
adjudicators for the purposes of the proposed Act) and to
revoke any authority so given. The Security of Payments
Official's decision in this regard will be reviewable by the
Magistrates Court (Administrative Appeals Division).
Clause 32: Enables nominating authorities to charge fees for services
associated with an adjudication application and allows the
Minister administering the proposed Act to limit the
amount of fees that can be charged by a nominating
authority for such services.
Clause 33: Provides for nominating authorities to provide information
to the Security of Payments Official in relation to activities
of the authority under the proposed Act.
Clause 34: Provides for nominating authorities to notify the Security
of Payments Official if the authority becomes aware that
an application has been made to a court in respect to an
adjudication application.
Clause 35: Provides for the disqualification of an adjudicator if he or
she has a material personal interest in a building or
construction contract, dispute, or party to the contract,
to which the application relates.
Clause 36: Provides for parties to adjudication to request the
adjudicator to disqualify themselves or provides for an
application to the Magistrates Court (Administrative
Appeals Division) for a review of the decision not to
disqualify.
Clause 37: Provides for the fees payable to an adjudicator in relation
to his or her adjudication of an adjudication application
under proposed Part 5. In particular, an adjudicator will
not be entitled to be paid any fees if he or she fails to
determine such an application within the time allowed
under clause 24.
Clause 38: Provides for nominating authorities to forward copies of
adjudicators determinations to the Security of Payments
Official and for the Security of Payments Official to publish
determinations and supply the Building Regulation
Advisory Committee with an annual report in respect of
the operation of the proposed Act.
Clause 39: Ensures that no action will lie against an adjudicator,
nominating authority or the Security of Payments Official
or any other person for anything done or omitted to be
done in good faith in performing their functions under the
proposed Act.
PART 8 MISCELLANEOUS
Clause 40: Deals with the service of notices under the proposed Act.
Clause 41: Enables the Governor to make regulations for the
purpose of the proposed Act.
Clause 42: Provides that a notice is not a statutory rule for the
purposes of the Rules Publication Act 1953.
Clause 43: Provides for the administration of the proposed Act to be
assigned to the Minister for Workplace Relations and
further provides for the Department of Justice to be
responsible to that Minister in relation to the
administration of the proposed Act.
Clause 44: Provides for the continued application of the Contractors
Debts Act 1939 in respect of any attachment notice that is
issued by a court before the day on which that section
commences and to any payment into court of money
pursuant to such a notice.
Clause 45: Provides that the Principal Act is the Judicial Review Act
2000.
Clause 46: Amends Schedule 1 of the Principle Act by inserting the
Building and Construction Industry Security of Payment Act
2009, so that a decision of an adjudicator is not subject to
the Principal Act.
Clause 47: Provides for the repeal of the Contractors Debts Act 1939.
SCHEDULE 1 LEGISLATION REPEALED
Schedule 1 Repeals the Contractors Debts Act 1939.