BUILDING LEGISLATION AMENDMENT BILL 2000

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This is a Bill, not an Act. For current law, see the Acts databases.

BUILDING LEGISLATION AMENDMENT BILL 2000

Western Australia

Building Legislation Amendment Bill 2000

CONTENTS

Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Builders' Registration Act 1939
3. The Act amended 3
4. Long title amended 3
5. Section 2 amended 3
6. Section 4 amended 4
7. Section 4A amended 4
8. Section 4B inserted 5
9. Section 5B amended 5
10 . Section 6 amended- 5
11 . Section 8 amended 6
12 . Sections 8B and 8C inserted 6
13 . Section 9AA inserted 8
14 . Section 9A amended 8
15 . Section 10 amended 8
16 . Section 10AA inserted 10
17 . Section 10CA amended 10
18 . Section 10D amended 11
19 . Section 12A amended 11
20 . Section 12C inserted 11
21 . Section 13 amended 12
22 . Section 13A inserted 15
23 . Section 14 amended 16
24 . Section 16 amended 17
25 . Section 17 replaced 17
26 . Section 20B inserted 19

page i
123--1B
Building Legislation Amendment Bill 2000

Contents

27 . Section 21 amended 22
28 . Section 21A amended 22
29 . Section 21B inserted 22
30 . Section 22 amended 23
31 . Section 23B amended 23
32 . Section 33 amended 24
33 . Section 33A inserted 24
34 . Section 34 replaced 25
35 . Sections 34A, 34B, 34C, 34D and 34E inserted 26
36 . Section 35 amended 28
37 . Section 38 amended 29
38 . Section 41 amended 30
39 . Section 44 amended 30
40 . Section 45A inserted 30
41 . Section 46 amended 31
42 . Various sections amended 31
Part 3 -- Home Building Contracts Act 1991
43 . The Act amended 33
44 . Section 3 amended 33
45 . Section 5 amended 34
46 . Section 8 amended 34
47 . Section 9 amended 34
48 . Section 10 amended 35
49 . Section 11 amended 35
50 . Section 15 amended 36
51 . Section 15A inserted 36
52 . Section 17 amended 37
53 . Section 18 amended 37
54 . Section 20 amended 38
55 . Section 25 repealed 39
56 . Sections 31A and 31B inserted 39
57 . Various sections amended 41
58 . Schedule 1 amended 42
Part 4 -- Transitional and consequential
provisions
59 . References to Committee in other written laws 43
60 . Transitional provision for annual report 43
61 . Constitution Acts Amendment Act 1899 amended 43

page ii
Building Legislation Amendment Bill 2000

Contents

Part 5 -- Review
62 . Review 44

page iii
Western Australia

LEGISLATIVE ASSEMBLY

Building Legislation Amendment Bill 2000

A Bill for

An Act --
• to amend the Builders' Registration Act 1939;
• to amend the Home Building Contracts Act 1991;
• to make a consequential amendment to the Constitution
Acts Amendment Act 1899,
and for related purposes.

The Parliament of Western Australia enacts as follows:

page 1
Building Legislation Amendment Bill 2000
Part 1 Preliminary

s. 1

Part 1 -- Preliminary
1. Short title
This Act may be cited as the Building Legislation Amendment
Act 2000.

5 2. Commencement
(1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.

page 2
Building Legislation Amendment Bill 2000
Builders' Registration Act 1939 Part 2

s. 3

Part 2 -- Builders' Registration Act 1939
3. The Act amended
The amendments in this Part are to the Builders' Registration
Act 1939*.
5 [* Reprinted as at 19 March 1999.]

4. Long title amended
The long title is amended by deleting "committee" and
inserting instead --
" tribunal ".

10 5. Section 2 amended
Section 2 is amended as follows --
(a) by deleting the definition of "Disputes Committee" and
inserting the following definition instead --
"
15 "Disputes Tribunal" means the Building Disputes
Tribunal established by section 26.
";
(b) by inserting in the appropriate alphabetical position the
following definition --
20 "
"legal practitioner" means a "certificated
practitioner" as defined in the Legal Practitioners
Act 1893.
".

page 3
Building Legislation Amendment Bill 2000
Part 2 Builders' Registration Act 1939

s. 6

6. Section 4 amended
Section 4(1aa) is repealed and the following subsection is
inserted instead --
"
5 (1aa) A person who contravenes subsection (1) commits an
offence and is liable to a penalty of $10 000 and a daily
penalty of $250 for a continuing offence.
".

7. Section 4A amended
10 (1) Section 4A(1)(c) is amended as follows:
(a) after subparagraph (i) by deleting "and";
(b) in subparagraph (ii) by deleting "furnished the local
government" and inserting instead --
"
15 satisfied the local government that he has
furnished the Board
";
(c) after subparagraph (ii) by deleting the full stop and
inserting --
20 "
; and
(iii) the person to whom the building licence
is issued has certified to the local
government in the prescribed manner
25 that the person has paid to the Board
such fee as is determined by the
Minister.
".

page 4
Building Legislation Amendment Bill 2000
Builders' Registration Act 1939 Part 2

s. 8

(2) Section 4A(2)(c) is amended by inserting after "any" --
" registration or ".

8. Section 4B inserted
After section 4A the following section is inserted --
5 "
4B. Building licence fee
(1) A person to whom a building licence is issued is to pay
to the local government by which the licence is issued
at the time of issue such fee as is determined by the
10 Minister.
(2) A local government shall within the prescribed period
after the end of the month in which a building licence
referred to in subsection (1) was issued --
(a) furnish to the Board the prescribed particulars
15 in relation to that licence; and
(b) remit to the Board the fee referred to in
subsection (1) less any amount the Board has
agreed to pay to the local government for
collection of the fee.
20 ".

9. Section 5B amended
Section 5B(1)(f) is amended by deleting "6" and inserting
instead --
" 3 ".

25 10. Section 6 amended
(1) Section 6(2) is amended by deleting ", and in case of an equality
of votes, shall have a second or casting vote".

page 5
Building Legislation Amendment Bill 2000
Part 2 Builders' Registration Act 1939

s. 11

(2) After section 6(2) the following subsection is inserted --
"
(2a) At any meeting of the Board each member present and
eligible to vote may cast a deliberative vote on any
5 question and the question is to be decided by the
majority, but if there is an equality of votes on any
question, the question is to be taken to have been
decided in the negative.
".
10 (3) Section 6(3) is amended by deleting "Four" and inserting
instead --
" Subject to section 13(4), 4 ".

11. Section 8 amended
Section 8(1) is amended as follows:
15 (a) by deleting "and" after paragraph (f);
(b) by inserting after paragraph (f) --
"
(fa) to carry out building information and
educational activities; and
20 ".

12. Sections 8B and 8C inserted
After section 8A the following sections are inserted --
"

8B. Corporate plan
25 (1) The Board must in each financial year prepare, and
submit to the Minister for approval, a corporate plan
for that financial year.

page 6
Building Legislation Amendment Bill 2000
Builders' Registration Act 1939 Part 2

s. 12

(2) Each corporate plan is to be submitted for approval not
later than 2 months before the start of the next financial
year, commencing with the 2001/2002 financial year.
(3) A corporate plan is to include --
5 (a) a statement of the objectives of the Board;
(b) a statement of the policies and strategies that
the Board intends to adopt in order to achieve
the Board's objectives;
(c) an estimate of the Board's income and
10 expenditure for the relevant financial year;
(d) the activities and improvements that the Board
proposes to carry out; and
(e) the resources that the Board proposes to
allocate to those activities and improvements.
15 (4) The corporate plan is to set out separate statements,
estimates and details under subsection (3) for --
(a) the administrative functions of the Board; and
(b) the management by the Board of the disputes
resolution procedures under this Act.
20 (5) The Board may, with the approval of the Minister,
revise a corporate plan at any time.

8C. Board to comply with corporate plan
From 1 July 2001, the Board is to ensure that, to the
extent that it is practicable to do so, the performance of
25 its functions and the exercise of its powers are
consistent with, and designed to give effect to, the
current corporate plan.
".

page 7
Building Legislation Amendment Bill 2000
Part 2 Builders' Registration Act 1939

s. 13

13. Section 9AA inserted
After section 9 the following section is inserted --
"
9AA. Notification of change of address
5 If there is a change in the residential or business
address of a person registered under this Act, as it
appears in the register, the person must notify the
Board in writing of the new address not later than 14
days after the change occurs.
10 Penalty: $1 000.
".

14. Section 9A amended
After section 9A(2) the following subsection is inserted --
"
15 (3) Notwithstanding subsection (1), the Board is not
required to register as a registered builder a person who
is an ineligible person under section 13(1ba).
".
15. Section 10 amended
20 (1) Section 10(1) is amended by deleting "subsection (2a)" and
inserting instead --
" subsections (2a) and (2b) ".
(2) Section 10(2) is amended by deleting "as hereafter provided,"
and inserting instead --
25 " to subsections (2a) and (2c), ".

page 8
Building Legislation Amendment Bill 2000
Builders' Registration Act 1939 Part 2

s. 15

(3) After section 10(2a) the following subsections are inserted --
"
(2b) Notwithstanding subsection (1), the Board is not
required to register as a registered builder a natural
5 person who is an ineligible person under
section 13(1ba).
(2c) Notwithstanding subsection (2), the Board may require
an applicant under that subsection to satisfy it that no
person who is a partner, director, member of the board
10 of management or otherwise involved in the
management of the partnership, company or body
corporate, as the case requires, is an ineligible person
under section 13(1ba), and may refuse to register an
applicant that fails to so satisfy it.
15 ".
(4) After section 10(3) the following subsections are inserted --
"
(3aa) When a partner, a director, or a member of a board of
management, whose registration has been used by a
20 partnership, company or body corporate to satisfy the
Board under subsection (2)(b)(ii) that it may manage
and supervise the building work undertaken by the
partnership, company or body corporate, ceases to
carry out that management and supervisory function --
25 (a) the partnership, company or body corporate;
and
(b) the partner, the director, or the member of that
board of management,
must notify the Board in writing of the cessation of that
30 management and supervisory function not later than 14
days after it occurs.
Penalty: $5 000.

page 9
Building Legislation Amendment Bill 2000
Part 2 Builders' Registration Act 1939

s. 16

(3ab) When a person who was employed as provided by
subsection (2) by a partnership, company or body
corporate to manage and supervise the building work
undertaken by the partnership, company or body
5 corporate ceases to be so employed --
(a) the partnership, company or body corporate;
and
(b) the person,
must notify the Board in writing of the cessation of
10 employment not later than 14 days after it occurs.
Penalty: $5 000.
".

16. Section 10AA inserted
After section 10A the following section is inserted --
15 "
10AA. Management and supervision of building work
Where any building work is carried out by a natural
person who is registered under this Act that person
shall --
20 (a) personally manage and supervise the building
work; or
(b) ensure that the building work is managed and
supervised.
Penalty: $250.
25 ".

17. Section 10CA amended
Section 10CA is amended after "prescribed by" by inserting --
" section 10AA, ".

page 10
Building Legislation Amendment Bill 2000
Builders' Registration Act 1939 Part 2

s. 18

18. Section 10D amended
Section 10D is amended after "sections" by inserting --
" 10AA, ".

19. Section 12A amended
5 After section 12A(1c) the following subsections are inserted --
"
(2) A complaint under subsection (1) or (1a) cannot be
made before the complainant has given to the other
party a preliminary notice under subsection (3).
10 (3) A preliminary notice is a notice in writing in the
prescribed form setting out the matters of which the
intending complainant complains and calling on the
other party to --
(a) rectify them; or
15 (b) otherwise attempt to settle any matters that are
in dispute.
(3a) A copy of the preliminary notice is to be given to the
Disputes Tribunal at the time a complaint is made
under subsection (1) or (1a).
20 ".
20. Section 12C inserted
After section 12B the following section is inserted --
"
12C. Orders for payment while case pending
25 (1) Where a person has made a complaint to the Disputes
Tribunal under section 12A the Disputes Tribunal may,
if it considers it just and expedient to do so, order an

page 11
Building Legislation Amendment Bill 2000
Part 2 Builders' Registration Act 1939

s. 21

amount of money to be paid to the Disputes Tribunal
by the person who carried out the building work.
(2) An order is not to be made under subsection (1) against
a person merely on account of the poor financial
5 position of that person.
(3) The Disputes Tribunal may, at any time before a final
decision is made on the complaint, review and vary or
cancel an order made under subsection (1).
(4) An amount paid to the Disputes Tribunal under this
10 section is to be placed by it in such interest bearing
account, as it thinks fit, and the amount and any
interest is to, on the determination of the complaint, be
paid in accordance with the order of the Disputes
Tribunal.
15 (5) If a person fails to comply with an order under
subsection (1) the Disputes Tribunal may strike out the
defence of that person.
".
21. Section 13 amended
20 (1) Section 13(1) is amended as follows:
(a) by deleting paragraph (ca) and "or" after it and inserting
instead --
"
(ca) where the building work carried out by the
25 builder has not been managed and supervised in
accordance with section 10AA, 10B or 10C, as
the case requires; or
";

page 12
Building Legislation Amendment Bill 2000
Builders' Registration Act 1939 Part 2

s. 21

(b) after paragraph (d) by inserting --
"
(da) who has been guilty of conduct that is harsh,
unconscionable, oppressive, misleading or
5 deceptive in relation to --
(i) a contract for the carrying out or
completion of building work or a
variation of that contract; or
(ii) the carrying out or completion of any
10 building work; or
(db) who has failed to comply with an order of the
Disputes Tribunal; or
";
(c) after paragraph (f) by inserting --
15 "
or
(g) where the builder is a partnership, company or
other body corporate and after such
registration --
20 (i) a person who is an ineligible person
under section 13(1ba) has been involved
in the management of the partnership,
company or body corporate; or
(ii) a person who is involved in the
25 management of the partnership,
company or body corporate is declared
to be an ineligible person under
section 13(1ba),
".
30 (2) Section 13(1a) is amended by deleting "(c) or (d)".

page 13
Building Legislation Amendment Bill 2000
Part 2 Builders' Registration Act 1939

s. 21

(3) After section 13(1b) the following subsections are inserted --
"
(1ba) Where the registration under this Act of a partnership,
company or body corporate has been cancelled or
5 suspended by the Board after the holding of an inquiry
into a matter or matters arising under subsection (1),
the Board may, if in all the circumstances it considers it
proper to do so, without further inquiry --
(a) declare a person who is a partner, director,
10 member of the board of management or
otherwise involved in the management of the
partnership, company or body corporate, as the
case requires, to be, for a period not exceeding
3 years, an ineligible person for the purposes of
15 section 9A or 10; and
(b) on the application of a person referred to in
paragraph (a) or on its own motion, vary or
revoke a declaration made under that
paragraph.
20 (1bb) The Board shall not make a declaration under
subsection (1ba)(a) in relation to a person unless it
has --
(a) sent to the person a copy of the notice sent to
the partnership, company or body corporate
25 under subsection (3); and
(b) afforded that person an opportunity of giving an
explanation personally at the inquiry or in
writing.
".

page 14
Building Legislation Amendment Bill 2000
Builders' Registration Act 1939 Part 2

s. 22

(4) Section 13(1c) is amended by inserting after
"subsection (1a)" --
" or impose a fine on a person under section 13A ".
(5) Section 13(3) is amended as follows:
5 (a) by inserting after "subsection (1)" --
" or imposing a fine on a builder under section 13A ";
(b) in paragraph (a) by deleting "by post or registered
letter,".
(6) After section 13(3) the following subsection is inserted --
10 "
(4) An inquiry under this section may be held by a panel
comprising not less than 3 members of the Board, of
whom one member must be a person appointed under
section 5A(3)(aa) or (b)(ii) or (iv).
15 ".

22. Section 13A inserted
After section 13 the following section is inserted --
"
13A. Fines
20 Where after the holding of a full inquiry in accordance
with section 13 the Board makes a finding that a
situation described in paragraph (a) or paragraphs (c)
to (f) of subsection (1) of that section exists or has
occurred in respect of a registered builder, the Board
25 may, instead of, or in addition to, cancelling or
suspending the registration of the builder under this
Act impose a fine not exceeding the prescribed
amount --
(a) on the builder;

page 15
Building Legislation Amendment Bill 2000
Part 2 Builders' Registration Act 1939

s. 23

(b) where the builder is a partnership, on one or
more of the following persons --
(i) a partner;
(ii) an employee by whom the building
5 work to which the inquiry related was,
or was required by this Act to be,
managed and supervised;
or
(c) where the builder is a company or other body
10 corporate, on one or more of the following
persons --
(i) a director of the company;
(ii) a member of the board of management
of the body corporate;
15 (iii) an employee by whom the building
work to which the inquiry related was,
or was required by this Act to be,
managed and supervised.
".

20 23. Section 14 amended
Section 14(1) is amended by deleting "refusing, cancelling, or
suspending his registration, or refusing to register him or to
annul the cancellation or suspension of his registration, may"
and inserting instead --
25 "
in relation to that person --
(a) refusing, cancelling, or suspending registration;
(b) refusing registration or annulment of the
cancellation or suspension of registration;

page 16
Building Legislation Amendment Bill 2000
Builders' Registration Act 1939 Part 2

s. 24

(c) making a declaration under section 13(1ba)(a)
that the person is an ineligible person; or
(d) imposing a fine under section 13A,
may
5 ".

24. Section 16 amended
(1) Section 16 is amended by inserting before "Save" the subsection
designation (1).
(2) At the end of section 16 the following subsection is inserted --
10 "
(2) A person who fails, neglects, or refuses to comply with
any lawful order or requirement of the Board made
under section 17 commits an offence and is liable to a
penalty of $2 000.
15 ".

25. Section 17 replaced
Section 17 is repealed and the following section is inserted
instead --
"
20 17. Powers on investigation or inquiry
(1) For the purpose of conducting any investigation or
inquiry authorised to be made under this Act, the Board
may --
(a) require any person --
25 (i) to attend before the Board;
(ii) to produce any document before the
Board;

page 17
Building Legislation Amendment Bill 2000
Part 2 Builders' Registration Act 1939

s. 25

(b) inspect any document produced before it, retain
the document for such reasonable period as is
required, and make copies of the document or
any of its contents;
5 (c) require any person to swear to answer truly any
relevant question put to that person by the
Board (and for that purpose may administer any
oath or affirmation);
(d) require any person attending before the Board
10 to answer any relevant question put to that
person by the Board; and
(e) require and take any statutory declaration.
(2) Where after holding an inquiry under section 13 the
Board has made a finding that a situation described in
15 subsection (1) of that section exists or has occurred in
respect of a registered builder, the Board may order the
builder whose registration is cancelled or suspended
under that section or the person upon whom a fine is
imposed under section 13A, as the case requires, to pay
20 to the Board such costs and expenses of and incidental
to the investigation and determination of the matter
inquired into as the Board thinks fit.
(3) Where the Board makes an order for the payment of
costs or expenses under subsection (2) or a fine under
25 section 13A against a registered builder and the costs,
expenses or fine are not or is not paid within the time
fixed by the Board, the Board may suspend the
registration of the builder until the costs, expenses or
fine are or is paid, or for such period as the Board
30 thinks fit.

page 18
Building Legislation Amendment Bill 2000
Builders' Registration Act 1939 Part 2

s. 26

(4) The power conferred on the Board by subsection (3) is
not to be taken to limit the powers conferred on the
Board by section 13.
(5) The amount of --
5 (a) any costs and expenses ordered to be paid
under subsection (2); or
(b) any fine ordered to be paid under section 13A,
may be recovered by the Board as a judgment debt in a
court of competent jurisdiction and for that purpose a
10 certified copy of the Board's order specifying the costs
and expenses or imposing the fine may be registered as
a judgment debt in such a court.
".

26. Section 20B inserted
15 After section 20A the following section is inserted --
"
20B. Infringement notices
(1) A reference in subsection (2), (3), (5) or (7) to an
"authorised person" is a reference to a person
20 appointed under subsection (10) to be an authorised
person for the purposes of the subsection in which the
term is used.
(2) An authorised person who has reason to believe that a
person has committed a prescribed offence against this
25 Act may, within 21 days after the alleged offence is
believed to have been committed, give an infringement
notice to the alleged offender.

page 19
Building Legislation Amendment Bill 2000
Part 2 Builders' Registration Act 1939

s. 26

(3) An infringement notice is to be in the prescribed form
and is to --
(a) contain a description of the alleged offence;
(b) advise that if the alleged offender does not wish
5 to have a complaint of the alleged offence
heard and determined by a court, the amount of
money specified in the notice as being the
modified penalty for the offence may be paid to
an authorised person within a period of 28 days
10 after the giving of the notice; and
(c) inform the alleged offender as to who are
authorised persons for the purposes of receiving
payment of modified penalties.
(4) In an infringement notice the amount specified as being
15 the modified penalty for the offence referred to in the
notice must be the amount that was the prescribed
modified penalty at the time the alleged offence is
believed to have been committed.
(4a) The modified penalty that regulations may prescribe
20 for an offence is not to exceed 20% of the maximum
penalty for that offence.
(5) An authorised person may, in a particular case, extend
the period of 28 days within which the modified
penalty may be paid and the extension may be allowed
25 whether or not the period of 28 days has elapsed.
(6) Where the modified penalty specified in an
infringement notice has been paid within 28 days or
such further time as is allowed and the notice has not
been withdrawn, the bringing of proceedings and the
30 imposition of penalties are prevented to the same
extent as they would be if the alleged offender had

page 20
Building Legislation Amendment Bill 2000
Builders' Registration Act 1939 Part 2

s. 26

been convicted by a court of, and punished for, the
alleged offence.
(7) An authorised person may, whether or not the modified
penalty has been paid, withdraw an infringement notice
5 by sending to the alleged offender a notice in the
prescribed form stating that the infringement notice has
been withdrawn.
(8) If an infringement notice is withdrawn after the
modified penalty has been paid, the amount is to be
10 refunded.
(9) Payment of a modified penalty is not to be regarded as
an admission for the purposes of any proceedings,
whether civil or criminal.
(10) The Board may, in writing, appoint persons or classes
15 of persons to be authorised persons for the purposes of
subsection (2), (3), (5) or (7) but a person who is
authorised to give infringement notices under
subsection (2) is not eligible to be an authorised person
for the purposes of any of the other subsections.
20 (11) The Board shall issue to each person who is authorised
to give infringement notices under this section a
certificate stating that the person is so authorised, and
the authorised person is to produce the certificate
whenever required to do so by a person to whom he has
25 given or is about to give an infringement notice.
".

page 21
Building Legislation Amendment Bill 2000
Part 2 Builders' Registration Act 1939

s. 27

27. Section 21 amended
After section 21(2) the following subsection is inserted --
"
(3) In any legal proceedings referred to in subsection (2) a
5 certificate purporting to be signed by the registrar
stating the facts referred to in --
(a) paragraphs (a), (b) and (f); and
(b) paragraph (c), (d) and (e), but only where the
certificate does not relate to an appointment,
10 authorisation or nomination of the registrar,
shall, without proof of the authenticity of the signature,
be prima facie evidence of the facts so stated on its
production by any person in those proceedings.
".

15 28. Section 21A amended
Section 21A is amended by deleting "12 months" and inserting
instead --
" 3 years ".

29. Section 21B inserted
20 After section 21A the following section is inserted --
"
21B. Liability of directors etc.
(1) Where a body corporate has committed an offence
against this Act and it is proved that the offence
25 occurred with the consent or connivance of, or was
attributable to any neglect on the part of, any person
who was an officer or was purporting to act as an

page 22
Building Legislation Amendment Bill 2000
Builders' Registration Act 1939 Part 2

s. 30

officer of the body corporate, that person, as well as the
body corporate, commits that offence.
(2) In subsection (1) "officer" has the same meaning as in
the Corporations Law but does not include an
5 employee of the body corporate unless he was
concerned in the management of the body corporate.
".

30. Section 22 amended
(1) Section 22(3) is amended by deleting "$1," and inserting
10 instead --
" $25 or such other amount as the Minister determines, ".
(2) Section 22(4) is repealed and the following subsection is
inserted instead --
"
15 (4) Subject to section 4B, all fees, costs and expenses
(including fees, costs and expenses paid to the Disputes
Tribunal), and monetary penalties (including modified
penalties under section 20B) paid or recovered under
this Act are to be paid to the Board.
20 ".
(3) Section 22(5) is amended by deleting "and penalties" and
inserting instead --
" , costs, expenses and monetary penalties ".

31. Section 23B amended
25 (1) Section 23B(1) is amended as follows:
(a) by deleting "31 March" and inserting instead --
" 30 September ";

page 23
Building Legislation Amendment Bill 2000
Part 2 Builders' Registration Act 1939

s. 32

(b) by deleting "31 December" and inserting instead --
" 30 June ".
(2) After section 23B(1) the following subsection is inserted --
"
5 (1a) The annual report is to contain separate reports on the
operations of the Board referred to in section 8B(4)(a)
and (b).
".

32. Section 33 amended
10 Section 33 is amended by repealing subsections (2), (3), (4) and
(5).

33. Section 33A inserted
After section 33 the following section is inserted --
"
15 33A. Exercise of prescribed jurisdiction of the Disputes
Tribunal
(1) Such of the jurisdiction of the Disputes Tribunal as is
prescribed may be exercised by --
(a) the registrar, with the written approval of the
20 Disputes Tribunal or the chairperson; or
(b) an authorised person, with the written approval
of the chairperson,
and for that purpose the registrar or authorised person
has all the powers of the Disputes Tribunal necessary
25 to do so.
(2) Where in the exercise of jurisdiction conferred by
subsection (1), the registrar or an authorised person
makes a decision or order, a party to the proceedings

page 24
Building Legislation Amendment Bill 2000
Builders' Registration Act 1939 Part 2

s. 34

who is dissatisfied with the decision or order may,
within 10 working days of the decision or order being
made, request the Disputes Tribunal to review the
decision or order and the Disputes Tribunal on
5 receiving such a request, shall review the decision or
order and confirm, vary or quash the decision or order.
(3) The Disputes Tribunal may, on its own motion, review
any decision or order made by the registrar or an
authorised person in the exercise of jurisdiction
10 conferred by subsection (1), and may confirm, vary or
quash the decision or order.
(4) Nothing in this section prejudices any right of appeal
that a person may have, but where the right of appeal is
exercisable in respect of a decision or order made by
15 the registrar or an authorised person in the exercise of
jurisdiction conferred by subsection (1), it shall not be
exercised until the right under subsection (2) to request
a review of the decision or order has been exhausted.
(5) In this section --
20 "authorised person" means a person authorised under
section 20A to enter upon land on which any
building work is being carried out and inspect the
building work.
".

25 34. Section 34 replaced
Section 34 is repealed and the following section is inserted
instead --

page 25
Building Legislation Amendment Bill 2000
Part 2 Builders' Registration Act 1939

s. 35

"
34. Administration and expenses of Disputes Tribunal
The Board is to --
(a) provide administrative support for the Disputes
5 Tribunal, including the administration and
collection of any fees payable to the Disputes
Tribunal; and
(b) meet the expenditure necessary for the
functioning of the Disputes Tribunal.
10 ".

35. Sections 34A, 34B, 34C, 34D and 34E inserted
After section 34 the following sections are inserted --
"
34A. Disputes Tribunal fees
15 A complaint or application made to the Disputes
Tribunal by any person other than the Board shall be
accompanied by the prescribed fee.

34B. Chairperson or deputy chairperson may refer a
matter to mediation
20 (1) After an application or complaint is made to the
Disputes Tribunal under this Act or the Home Building
Contracts Act 1991 the chairperson or a deputy
chairperson may --
(a) appoint a mediator from the panel of persons
25 referred to in section 34D(1) to attempt to
achieve a negotiated settlement of the matters
in dispute (in this section and section 34C
referred to as "the dispute"); and

page 26
Building Legislation Amendment Bill 2000
Builders' Registration Act 1939 Part 2

s. 35

(b) fix a time and a place for the holding of the
mediation.
(2) If a mediator is appointed under subsection (1) the
registrar is to give --
5 (a) to any person against whom an order of the
Disputes Tribunal is sought and to any other
person specified by the chairperson or a deputy
chairperson, a copy of the application or
complaint, together with a notice of the
10 mediation setting out when and where the
mediation is to be held; and
(b) to the applicant or complainant, a notice of the
mediation setting out when and where the
mediation is to be held.
15 (3) The chairperson or a deputy chairperson may, at any
time, give to all parties to the dispute a notice
cancelling the mediation.

34C. Settlement or failure to settle
(1) If the parties agree to settle the dispute as a result of
20 mediation the mediator is to report the terms of the
settlement to the Disputes Tribunal.
(2) The Disputes Tribunal is to make an order giving effect
to the settlement and such consequential orders as it
considers necessary.
25 (3) If, within such time as the Disputes Tribunal considers
is reasonable, the mediator does not make a report
under subsection (1) with respect to all the matters in
dispute, section 37(1) applies to the dispute or to those
matters remaining in dispute at that time.

page 27
Building Legislation Amendment Bill 2000
Part 2 Builders' Registration Act 1939

s. 36

(4) Evidence of anything said or done in the course of the
mediation of a dispute is not admissible in proceedings
arising from the dispute before the Disputes Tribunal
nor in any related proceeding.

5 34D. Qualifications and remuneration of mediators
(1) The Board is to establish a panel of persons who are, in
the opinion of the Board, suitably qualified to be
mediators.
(2) A mediator is to be paid such remuneration and
10 travelling and other allowances as are determined by
the Board.

34E. Immunity of mediators
A mediator appointed by the Disputes Tribunal under
section 34B has the same protection as a member of the
15 Disputes Tribunal.
".

36. Section 35 amended
(1) Section 35(2) is amended by deleting "When" and inserting
instead --
20 " Subject to subsection (2a), when ".
(2) After section 35(2) the following subsection is inserted --
"
(2a) When exercising its jurisdiction in interlocutory and
procedural matters or in the resolution of simple
25 disputes the Disputes Tribunal may, where the
chairperson or deputy chairperson, as the case requires,
considers it appropriate, be constituted by the
chairperson or a deputy chairperson sitting alone, but

page 28
Building Legislation Amendment Bill 2000
Builders' Registration Act 1939 Part 2

s. 37

nothing in this subsection prevents any such
proceedings from being dealt with by the Disputes
Tribunal constituted in accordance with subsection (2).
".

5 37. Section 38 amended
(1) Section 38(3) is amended by deleting "The" and inserting
instead --
" Subject to subsection (4), the ".
(2) After section 38(3) the following subsections are inserted --
10 "
(4) In any proceedings costs are not to be awarded to any
party to the proceedings for the services of any legal
practitioner or other person representing or assisting in
the representation of that party unless, in the opinion of
15 the Disputes Tribunal, the proceedings have been
frivolously or vexatiously instituted or defended, as the
case requires, by the other party or are without
substance.
(5) Subject to subsection (6), where --
20 (a) in proceedings --
(i) under section 12A, a person who is not
registered under this Act is the person
who carried out the building work; or
(ii) under section 17 of the Home Building
25 Contracts Act 1991, a person who is not
registered under this Act is the builder;
and

page 29
Building Legislation Amendment Bill 2000
Part 2 Builders' Registration Act 1939

s. 38

(b) a decision is made by the Disputes Tribunal
against the person,
the Disputes Tribunal may, if it thinks fit, order that
person to pay to the Disputes Tribunal such of the costs
5 of and incidental to the consideration and
determination of the matter being inquired into as it
considers appropriate.
(6) Subsection (5) does not apply to a person who, under
section 4(1)(A)(aa) or (1a), is not required to be
10 registered under this Act.
".
38. Section 41 amended
Section 41(2) is amended by deleting "Disputes Committee or
the".

15 39. Section 44 amended
Section 44(1) is amended by inserting after "sum" --
"
whether under this Act or the Home Building Contracts
Act 1991
20 ".
40. Section 45A inserted
After section 45 the following section is inserted --
"
45A. Presentation of cases before Disputes Tribunal
25 A person must not demand or receive any fee or reward
for representing or assisting in the representation of a
party to proceedings before the Disputes Tribunal
unless --
(a) the person is a legal practitioner;

page 30
Building Legislation Amendment Bill 2000
Builders' Registration Act 1939 Part 2

s. 41

(b) where the party is a body corporate, the person
is an officer or employee of the body corporate
authorised to conduct the proceedings on its
behalf; or
5 (c) the person is an interpreter for a party and the
fee does not exceed the amount fixed by the
Disputes Tribunal.
Penalty: $5 000.
".

10 41. Section 46 amended
Section 46(2) is amended by inserting after paragraph (c) the
following paragraph --
"
(ca) make provision as to mediation and mediation
15 proceedings;
".

42. Various sections amended
The provisions referred to in the Table to this section are
amended by deleting "Committee" in each place where it occurs
20 and inserting instead the following --
" Tribunal ".

page 31
Building Legislation Amendment Bill 2000
Part 2 Builders' Registration Act 1939

s. 42

Table
s. 7(1) s. 36(3) (twice)
s. 12A(1) (4 times) s. 36(4)
s. 12A(1a) (4 times) s. 36(5)
s. 12A(1aa) s. 37(1) (3 times)
s. 12A(1c) s. 37(2)
s. 12A(4) s. 37(3)
s. 12A(4a) (3 times) s. 38(1) (9 times)
s. 12A(4b) s. 38(2) (twice)
s. 12A(5) s. 38(3)
s. 12A(6) s. 39 (6 times)
s. 25 (twice) s. 40(1) (4 times)
s. 26(1) s. 40(2) (twice)
s. 26(2) s. 41(1) (twice)
s. 27(1) s. 41(3)
s. 27(2) s. 41(5) (3 times)
s. 32 s. 42(1) (3 times)
s. 33(1) s. 42(2) (twice)
s. 35(1) s. 43 (twice)
s. 35(2) s. 44(1)
s. 35(4) (4 times) s. 44(2)
s. 36(1) s. 45 (4 times)
s. 36(2) s. 46(1)
s. 46(2) (twice).

page 32
Building Legislation Amendment Bill 2000
Home Building Contracts Act 1991 Part 3

s. 43

Part 3 -- Home Building Contracts Act 1991
43. The Act amended
The amendments in this Part are to the Home Building
Contracts Act 1991*.
5 [* Reprinted as at 30 October 1998.]

44. Section 3 amended
Section 3(1) is amended as follows:
(a) by deleting the definition of "Disputes Committee" and
inserting the following definition instead --
10 "
"Disputes Tribunal" means the Building Disputes
Tribunal established by section 26 of the Builders'
Registration Act 1939;
";
15 (b) in paragraph (b)(ii) and (iii) of the definition of "home
building work contract" by inserting after "if the
amount" in both places where it occurs --
" stated in the contract as being ";
(c) by inserting in the appropriate alphabetical position the
20 following definition --
"
"Builders' Registration Board" means the Builders'
Registration Board constituted under the Builders'
Registration Act 1939.
25 ".

page 33
Building Legislation Amendment Bill 2000
Part 3 Home Building Contracts Act 1991

s. 45

45. Section 5 amended
Section 5(3) is amended by deleting "14 days" and inserting
instead --
" 10 working days ".

5 46. Section 8 amended
(1) Section 8(2) is amended by deleting "14 days" and inserting
instead --
" 10 working days ".
(2) Section 8(3) is amended by deleting "14 days" and inserting
10 instead --
" 10 working days ".

47. Section 9 amended
(1) Section 9(1) is amended as follows:
(a) by deleting paragraph (b) and inserting the following
15 paragraph instead --
"
(b) where a condition is attached to the licence
which will result in a variation of the contract,
the owner and the builder acknowledging in
20 writing within that period that each of them
accepts that condition;
";
(b) by deleting paragraph (d) and inserting the following
paragraph instead --
25 "
(d) where a direction is given under the Water Act
by the Water Corporation (established by the

page 34
Building Legislation Amendment Bill 2000
Home Building Contracts Act 1991 Part 3

s. 48

Water Corporation Act 1995) in connection
with the carrying out of the work which will
result in a variation of the contract, the owner
and the builder acknowledging in writing
5 within that period that each of them accepts that
direction.
".
(2) Section 9(3) is amended by deleting "30 days" and inserting
instead --
10 " 20 working days ".

48. Section 10 amended
After section 10(4) the following subsection is inserted --
"
(5) A builder under a contract must not demand or receive
15 from the owner any payment after the commencement
of the home building work unless the payment is a
genuine progress payment for the purposes of
subsection (1)(b)(i) or of a prescribed kind under
subsection (1)(b)(ii).
20 Penalty: $10 000.
".

49. Section 11 amended
(1) Section 11(1) is amended by deleting "120 days" and inserting
instead --
25 " 4 months ".

page 35
Building Legislation Amendment Bill 2000
Part 3 Home Building Contracts Act 1991

s. 50

(2) After section 11(1) the following subsection is inserted --
"
(1a) Nothing in subsection (1) prevents a contract from
providing for a period greater than 4 months as the
5 period within which the notification referred to in that
subsection must be given.
".

50. Section 15 amended
(1) Section 15(1)(a) is amended as follows:
10 (a) by inserting after "contract" --
"
or negotiations to vary a contract after
execution
";
15 (b) by deleting "it is" and inserting instead --
" the contract or variation of contract is ".
(2) Section 15(3)(c) is amended by deleting "10 days" in both
places where it occurs and inserting instead --
" 10 working days ".

20 51. Section 15A inserted
After section 15 the following section is inserted --
"
15A. Misleading or deceptive conduct
A person who is a builder or an owner must not, in
25 connection with --
(a) the formation or execution of a contract;

page 36
Building Legislation Amendment Bill 2000
Home Building Contracts Act 1991 Part 3

s. 52

(b) negotiations to vary a contract after execution;
or
(c) the circumstances in which a contract or
variation of contract is entered into,
5 engage in conduct that is misleading or deceptive.
".

52. Section 17 amended
(1) Section 17(3) is amended by inserting after "writing" --
" in the prescribed form ".
10 (2) After section 17(3) the following subsection is inserted --
"
(3a) A copy of the preliminary notice is to be given to the
Disputes Tribunal at the time an application is made
under subsection (1).
15 ".
(3) After section 17(4)(b) the following paragraph is inserted --
"
(ba) by order declare that an amount is not payable
to a person under the contract and, if already
20 paid, order the repayment of that amount;
".

53. Section 18 amended
(1) Section 18(1) is repealed and the following subsection is
inserted instead --
25 "
(1) Where an owner or a builder has applied to the
Disputes Tribunal for relief under this Act the Disputes
Tribunal may, if it considers it just and expedient to do

page 37
Building Legislation Amendment Bill 2000
Part 3 Home Building Contracts Act 1991

s. 54

so, order an amount of money to be paid to the
Disputes Tribunal by either the owner or the builder or
by both of them.
".
5 (2) After section 18(2) the following subsection is inserted --
"
(2a) The Disputes Tribunal may, at any time before a final
decision is made on the application for relief, review
and vary or cancel an order made under subsection (1).
10 ".
(3) After section 18(3) the following subsection is inserted --
"
(4) If a person fails to comply with an order under
subsection (1) the Disputes Tribunal may strike out the
15 application for relief or the defence, as the case
requires, of that person.
".

54. Section 20 amended
Section 20(b) is deleted and the following paragraph is inserted
20 instead --
"
(b) payment to the builder in respect of --
(i) any materials supplied by the builder;
(ii) any home building work or other
25 services performed by the builder; or
(iii) costs, including overhead expenses and
loss of profit, incurred by the builder,
under or in relation to the contract.
".

page 38
Building Legislation Amendment Bill 2000
Home Building Contracts Act 1991 Part 3

s. 55

55. Section 25 repealed
Section 25 is repealed.

56. Sections 31A and 31B inserted
After section 31 the following sections are inserted --
5 "

31A. Penalties and costs
All penalties or costs paid or recovered under this Act
shall be paid to the Builders' Registration Board.

31B. Infringement notices
10 (1) A reference in subsection (2), (3), (5) or (7) to an
"authorised person" is a reference to a person
appointed under subsection (10) to be an authorised
person for the purposes of the subsection in which the
term is used.
15 (2) An authorised person who has reason to believe that a
person has committed a prescribed offence against this
Act may, within 21 days after the alleged offence is
believed to have been committed, give an infringement
notice to the alleged offender.
20 (3) An infringement notice is to be in the prescribed form
and is to --
(a) contain a description of the alleged offence;
(b) advise that if the alleged offender does not wish
to have a complaint of the alleged offence
25 heard and determined by a court, the amount of
money specified in the notice as being the
modified penalty for the offence may be paid to

page 39
Building Legislation Amendment Bill 2000
Part 3 Home Building Contracts Act 1991

s. 56

an authorised person within a period of 28 days
after the giving of the notice; and
(c) inform the alleged offender as to who are
authorised persons for the purposes of receiving
5 payment of modified penalties.
(4) In an infringement notice the amount specified as being
the modified penalty for the offence referred to in the
notice must be the amount that was the prescribed
modified penalty at the time the alleged offence is
10 believed to have been committed.
(4a) The modified penalty that regulations may prescribe
for an offence is not to exceed 20% of the maximum
penalty for that offence.
(5) An authorised person may, in a particular case, extend
15 the period of 28 days within which the modified
penalty may be paid and the extension may be allowed
whether or not the period of 28 days has elapsed.
(6) Where the modified penalty specified in an
infringement notice has been paid within 28 days or
20 such further time as is allowed and the notice has not
been withdrawn, the bringing of proceedings and the
imposition of penalties are prevented to the same
extent as they would be if the alleged offender had
been convicted by a court of, and punished for, the
25 alleged offence.
(7) An authorised person may, whether or not the modified
penalty has been paid, withdraw an infringement notice
by sending to the alleged offender a notice in the
prescribed form stating that the infringement notice has
30 been withdrawn.

page 40
Building Legislation Amendment Bill 2000
Home Building Contracts Act 1991 Part 3

s. 57

(8) If an infringement notice is withdrawn after the
modified penalty has been paid, the amount is to be
refunded.
(9) Payment of a modified penalty is not to be regarded as
5 an admission for the purposes of any proceedings,
whether civil or criminal.
(10) The Builders' Registration Board may, in writing
appoint persons or classes of persons to be authorised
persons for the purposes of subsection (2), (3), (5)
10 or (7) but a person who is authorised to give
infringement notices under subsection (2) is not
eligible to be an authorised person for the purposes of
any of the other subsections.
(11) The Builders' Registration Board shall issue to each
15 person who is authorised to give infringement notices
under this section a certificate stating that the person is
so authorised, and the authorised person is to produce
the certificate whenever required to do so by a person
to whom he or she has given or is about to give an
20 infringement notice.
".

57. Various sections amended
The provisions referred to in the Table to this section are
amended by deleting "Committee" in each place where it occurs
25 and inserting the following --
" Tribunal ".

page 41
Building Legislation Amendment Bill 2000
Part 3 Home Building Contracts Act 1991

s. 58

Table
s. 15(4) s. 23(1) (twice)
s. 16(1) s. 23(2) (twice)
s. 17(1) s. 24(1) (twice)
s. 17(4) (twice) s. 24(3) (twice)
s. 17(7) s. 24(4)
s. 18(3) (twice) s. 24(5)
s. 20 Schedule 1, clause 5(1)
s. 21(1) Schedule 1, clause 5(3).
s. 21(3) (twice)
s. 21(4) (twice)
s. 22 (3 times)

58. Schedule 1 amended
Schedule 1 is amended as follows --
(a) in clause 2 by deleting "or either party terminates the
5 contract in accordance with section 19";
(b) in clause 3 by deleting "or either party terminates the
contract in accordance with section 19";
(c) in clause 5(3) by deleting "Committee's" and inserting
instead --
10 " Tribunal's ".

page 42
Building Legislation Amendment Bill 2000
Transitional and consequential provisions Part 4

s. 59

Part 4 -- Transitional and consequential provisions
59. References to Committee in other written laws
A reference in any written law to the Building Disputes
Committee constituted under the Builders' Registration
5 Act 1939 is to be read and construed as a reference to the
Building Disputes Tribunal under that Act as amended by this
Act.

60. Transitional provision for annual report
(1) The Board shall make and submit to the Minister under section
10 23B of the Builders' Registration Act 1939 a report of its
proceedings for the period from 1 January preceding the coming
into operation of section 29 of the Building Legislation
Amendment Act 2000 ("the commencement day") to the
following 30 June as if the period were a full year.
15 (2) The first annual report under section 23B of the Builders'
Registration Act 1939 after the commencement day is to be
made in respect of the period from the 1 July after the
commencement day.

61. Constitution Acts Amendment Act 1899 amended
20 The Constitution Acts Amendment Act 1899* is amended in
Part 3 of Schedule V by deleting "The Building Disputes
Committee" and inserting instead --
" The Building Disputes Tribunal ".
[* Reprinted as at 15 April 1999.
25 For subsequent amendments see 1999 Index to Legislation of
Western Australia, Table 1, pp.49-50.]

page 43
Building Legislation Amendment Bill 2000
Part 5 Review

s. 62

Part 5 -- Review
62. Review
(1) The Minister is to carry out a review of the operation and
effectiveness of the amendments made by this Act as soon as is
5 practicable after the expiration of 3 years from the
commencement of section 1 of this Act.
(2) The Minister is to prepare a report based on the review made
under subsection (1) and, as soon as is practicable after the
report is prepared, is to cause it to be laid before each House of
10 Parliament.

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