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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Building Services (Complaint Resolution and
Administration) Bill 2010
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Terms used 2
4. Crown bound 5
Part 2 -- Complaints and conciliation
Division 1 -- Complaints about the carrying out
of regulated building services or home
building work contract matters
5. Making a complaint about a building service or
home building work contract matter 6
6. Time limit for complaint 7
7. Preliminary decision by Building Commissioner 8
8. Further information and verification 9
9. Investigation 9
10. Report on complaint 10
11. Action after report 10
12. Building Commissioner not party to proceeding
before State Administrative Tribunal 11
13. Withdrawal of complaint 12
Division 2 -- Complaints about disciplinary
matters
14. Application of this Division 12
15. Making a complaint about a disciplinary matter 12
16. Preliminary decision by Building Commissioner 13
169--2 page i
Building Services (Complaint Resolution and Administration) Bill 2010
Contents
17. Building Commissioner may deal with matter as if
it were subject of disciplinary complaint 14
18. Further information and verification 14
19. Action in respect of accepted disciplinary
complaint 15
20. Report on complaint 15
21. Action after report 16
22. Withdrawal of complaint 16
Division 3 -- Conciliation
23. Role of conciliator 17
24. Parties to conciliation proceeding 18
25. Attendance at conciliation proceeding 18
26. Representation at conciliation proceeding 18
27. Building Commissioner may make orders to give
effect to agreement 19
28. Evidence of certain things inadmissible 19
29. Action if conciliation fails 20
Part 3 -- Orders
Division 1 -- Interim Orders
30. Interim building service order 21
31. Interim disciplinary order 22
32. Effect of interim order 23
33. Revocation or variation of interim order 24
34. Jurisdiction of State Administrative Tribunal 24
35. Publication of interim order 25
Division 2 -- Building remedy orders
36. Building remedy order 25
37. Building remedy order by Building Commissioner 26
38. How State Administrative Tribunal may deal with
building service complaint 26
39. Order for payment before building remedy order 27
40. Building remedy order does not prevent
disciplinary action 28
Division 3 -- HBWC remedy orders
41. HBWC remedy orders 29
42. HBWC remedy order by Building Commissioner 31
43. How State Administrative Tribunal may deal with
HBWC complaint 32
page ii
Building Services (Complaint Resolution and Administration) Bill 2010
Contents
44. Order for payment before HBWC remedy order 32
45. HBWC remedy order does not prevent disciplinary
action 33
Division 4 -- Procedure, costs and enforcement
of orders
46. Procedure of Building Commissioner 34
47. Provision of information and documents to
Building Commissioner 34
48. Joining of parties in HBWC complaint about
unconscionable, harsh or oppressive conduct or
contract 35
49. Costs and expenses 35
50. Enforcement of order requiring payment of money 37
51. Failure to comply with order to do work: new
order 37
52. Enforcement of order other than monetary order or
order to do work 39
53. Failure to comply with order: offence 40
54. Avoidance of concurrent proceedings 40
55. Transfer of proceeding 41
56. Effect on other remedies 42
Division 5 -- Review
57. Review by State Administrative Tribunal of orders
given by Building Commissioner 42
58. State Administrative Tribunal internal review 42
Part 4 -- Inspections and
investigations
Division 1 -- Preliminary
59. Terms used 45
Division 2 -- Authorised persons
60. Authorised persons 45
61. Identity cards 46
62. Production or display of identity card 46
63. Limitation on powers of authorised person 47
Division 3 -- Inspections
64. Compliance inspections 47
65. General inspections 48
page iii
Building Services (Complaint Resolution and Administration) Bill 2010
Contents
Division 4 -- Powers in relation to inspections
and investigations
66. Entry powers 49
67. Powers after entry for compliance purposes or
investigation 50
68. Obtaining information and documents 51
69. Use of force and assistance 52
70. Obstruction 53
71. Directions generally 53
Division 5 -- Entry warrants
72. Warrant to enter place 54
73. Issue of warrant 54
74. Effect of entry warrant 55
75. Execution of warrant 55
Part 5 -- Remedying dangerous and
other situations
76. Terms used 56
77. Dangerous situation, emergency remedial
measures 56
78. Restricting access to dangerous situations 57
79. Recovering costs 58
80. Remediation notice 59
81. Building Commissioner may approve earlier or
immediate compliance with remediation notice 61
82. Contravention of remediation notice, action by
authorised person 62
83. Review by Building Commissioner 62
84. Review by State Administrative Tribunal 63
Part 6 -- Administration
85. Building Commissioner 64
86. Functions 64
87. Powers 65
88. Warning about unsatisfactory or dangerous
services 66
89. Committees 67
90. Disclosure of material personal interest 67
91. Delegation 67
page iv
Building Services (Complaint Resolution and Administration) Bill 2010
Contents
Part 7 -- Financial provisions
Division 1 -- Building Services Account
92. Building Services Account 69
Division 2 -- Building services levy
93. Terms used 70
94. Building services levy may be prescribed 71
Part 8 -- Codes and standards
95. Terms used 73
96. Building Commissioner may develop and issue
building service codes and standards 73
97. Codes and standards may refer to published
documents 74
Part 9 -- General provisions
98. Incriminating information 76
99. Legal professional privilege 76
100. Protection from liability 76
101. Exchange of information 77
102. Protection for compliance with Act 78
103. Confidentiality 78
104. False or misleading information 79
105. Offences by body corporate -- liability of officers 80
106. Prosecutions 81
107. Service of documents 81
108. Evidentiary matters 82
109. Regulations 83
110. Forms 85
111. Review of Act 85
Part 10 -- Consequential
amendments and
transitional provisions
Division 1 -- Home Building Contracts Act 1991
amended
112. Home Building Contracts Act 1991 amended 86
113. Section 3 amended 86
114. Section 8 amended 86
115. Section 15 amended 87
page v
Building Services (Complaint Resolution and Administration) Bill 2010
Contents
116. Section 16 deleted 87
117. Section 17 replaced 87
17. Complaint in respect of breach or
entitlement to compensation 87
118. Section 18 deleted 88
119. Section 20 replaced 88
20. Adjustment of rights in certain cases 88
120. Sections 21, 22, 23 and 24 deleted. 89
121. Section 25D amended 89
122. Section 25G amended 89
123. Section 27 amended 89
124. Section 31 replaced 89
31. Prosecutions 89
125. Section 31A deleted 90
126. Schedule 1 amended 90
Division 2 -- Other amendments and repeal
Subdivision 1 -- Acts amended
127. Constitution Acts Amendment Act 1899 amended 91
128. Construction Contracts Act 2004 amended 91
129. Magistrates Court (Civil Proceedings) Act 2004
amended 92
130. Water Services Licensing Act 1995 amended 93
Subdivision 2 -- Regulations repealed
131. Building Disputes Committee Regulations 1992
repealed 94
Division 3 -- Transitional and savings
provisions
132. Terms used 94
133. Transfer of jurisdiction 94
134. Current proceedings continued 95
135. Decisions and actions of former Tribunal 95
136. Construction of written laws and other instruments 96
137. Construction Contracts Act 2004 amendments:
transitional provisions 96
138. Regulations for transitional matters 97
Defined Terms
page vi
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail)
Building Services (Complaint Resolution and
Administration) Bill 2010
A Bill for
An Act to provide for the following --
a system for dealing with complaints about building services,
home building work contract matters and disciplinary matters;
a public officer with functions relating to building services and
complaints;
a levy in relation to certain authorisations for building services;
a system for ensuring compliance with laws about building
services;
related matters.
The Parliament of Western Australia enacts as follows:
page 1
Building Services (Complaint Resolution and Administration) Bill 2010
Part 1 Preliminary
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This is the Building Services (Complaint Resolution and
4 Administration) Act 2010.
5 2. Commencement
6 This Act comes into operation as follows --
7 (a) sections 1 and 2 -- on the day on which this Act
8 receives the Royal Assent;
9 (b) the rest of the Act -- on a day fixed by proclamation,
10 and different days may be fixed for different provisions.
11 3. Terms used
12 In this Act, unless the contrary intention appears --
13 approved owner-builder means a person to whom an
14 owner-builder approval has been granted under the Building
15 Services (Registration) Act 2010 section 45(2);
16 authorised person means a person designated under section 60
17 as an authorised person;
18 builder, in relation to a home building work contract, has the
19 meaning given in the Home Building Contracts Act 1991
20 section 3(1);
21 building includes an incidental structure as defined in the
22 Building Act 2010 section 3;
23 Building Commissioner means the officer referred to in
24 section 85;
25 building remedy order has the meaning given in section 36(1);
26 building service means any of the following --
27 (a) building work (as defined in the Building Act 2010
28 section 3);
29 (b) demolition work (as defined in the Building Act 2010
30 section 3);
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Building Services (Complaint Resolution and Administration) Bill 2010
Preliminary Part 1
s. 3
1 (c) plumbing work;
2 (d) any other service or work prescribed for the purposes of
3 this definition;
4 building service Act means any of the following --
5 (a) this Act;
6 (b) the Building Act 2010;
7 (c) the Building Services (Registration) Act 2010;
8 (d) the Construction Contracts Act 2004;
9 (e) the Home Building Contracts Act 1991;
10 (f) the Water Services Licensing Act 1995 Part 5A;
11 (g) the Local Government (Miscellaneous Provisions) Act
12 1960 Parts VIII, IX and XV;
13 (h) any other enactment prescribed for the purposes of this
14 definition;
15 building service complaint means a complaint under
16 section 5(1);
17 Building Services Account means the account referred to in
18 section 92(1);
19 Building Services Board means the Building Services Board
20 established by the Building Services (Registration) Act 2010
21 section 65;
22 building services levy means the levy provided for by
23 regulations referred to in section 94 and imposed under the
24 Building Services Levy Act 2010;
25 committee means a committee appointed under section 89;
26 complaint means any of the following --
27 (a) a building service complaint;
28 (b) a HBWC complaint;
29 (c) a disciplinary complaint;
30 Department means the department of the Public Service
31 principally assisting the Minister in the administration of
32 this Act;
page 3
Building Services (Complaint Resolution and Administration) Bill 2010
Part 1 Preliminary
s. 3
1 disciplinary complaint means --
2 (a) a complaint under section 15(1); or
3 (b) a matter the Building Commissioner has decided under
4 section 17 to deal with as if it were a disciplinary
5 complaint;
6 disciplinary matter --
7 (a) in relation to a registered building service provider --
8 has the meaning given in the Building Services
9 (Registration) Act 2010 section 53;
10 (b) in relation to an approved owner-builder -- means a
11 matter referred to in the Building Services (Registration)
12 Act 2010 section 50;
13 HBWC complaint means a complaint under section 5(2);
14 HBWC remedy order has the meaning given in section 41(2);
15 home building work has the meaning given in the Home
16 Building Contracts Act 1991 section 3(1);
17 home building work contract has the meaning given in the
18 Home Building Contracts Act 1991 section 3(1);
19 interim building service order means an order under section 30;
20 interim disciplinary order means an order under section 31;
21 interim order means an interim building service order or an
22 interim disciplinary order;
23 owner, in relation to a home building work contract, has the
24 meaning given in the Home Building Contracts Act 1991
25 section 3(1);
26 permit authority means a permit authority for a building under
27 the Building Act 2010;
28 place means any land, building or structure, or a part of any
29 land, building or structure;
30 plumbing work has the meaning given in the Water Services
31 Licensing Act 1995 section 59I;
32 prescribed means prescribed by regulation;
page 4
Building Services (Complaint Resolution and Administration) Bill 2010
Preliminary Part 1
s. 4
1 record means any document or record of information,
2 irrespective of how the information is recorded or stored or able
3 to be recovered and includes --
4 (a) any thing from which images, sounds or writings can be
5 reproduced, with or without the aid of anything else; and
6 (b) any thing on which information is recorded or stored,
7 whether electronically, magnetically, mechanically or by
8 some other means;
9 registered building service provider has the meaning given in
10 the Building Services (Registration) Act 2010 section 3;
11 regulated building service means any of the following --
12 (a) a building service carried out by a registered building
13 service provider or an approved owner-builder;
14 (b) home building work that is --
15 (i) carried out by a person for another person under
16 a home building work contract or other contract
17 or arrangement for gain or reward; and
18 (ii) not carried out for a person who is in turn
19 obliged to perform the work under another
20 contract;
21 (c) any other service or work prescribed for the purposes of
22 this definition;
23 respondent means a person the subject of a complaint;
24 vocational regulatory body means any of the following --
25 (a) the Architects Board of Western Australia established
26 under the Architects Act 2004 section 5;
27 (b) the Plumbers Licensing Board established under the
28 Water Services Licensing Act 1995 section 59;
29 (c) any other body or person prescribed for the purposes of
30 this definition.
31 4. Crown bound
32 This Act binds the Crown.
page 5
Building Services (Complaint Resolution and Administration) Bill 2010
Part 2 Complaints and conciliation
Division 1 Complaints about the carrying out of regulated building
services or home building work contract matters
s. 5
1 Part 2 -- Complaints and conciliation
2 Division 1 -- Complaints about the carrying out of regulated
3 building services or home building work contract matters
4 5. Making a complaint about a building service or home
5 building work contract matter
6 (1) Subject to the regulations, a person may make a complaint to
7 the Building Commissioner about a regulated building service
8 not being carried out in a proper and proficient manner or being
9 faulty or unsatisfactory.
10 (2) An owner or builder under a home building work contract may
11 make a complaint to the Building Commissioner about a matter
12 referred to in the Home Building Contracts Act 1991 section 17
13 or 20 or Schedule 1 clause 5.
14 (3) A complaint may be made --
15 (a) under subsection (1) irrespective of whether the
16 regulated building service was carried out before or after
17 the coming into operation of this Act; and
18 (b) under subsection (2) irrespective of whether --
19 (i) the matter complained about occurred before or
20 after the coming into operation of this Act; or
21 (ii) the home building work contract to which the
22 complaint relates was entered into before or after
23 the coming into operation of this Act.
24 (4) A complaint that is both a complaint about a matter referred to
25 in subsection (1) or (2) and a complaint about a disciplinary
26 matter may be dealt with by the Building Commissioner as if it
27 were a complaint under this section and a complaint under
28 section 15.
29 (5) The regulations may make provision as to --
30 (a) who can make a building service complaint; and
page 6
Building Services (Complaint Resolution and Administration) Bill 2010
Complaints and conciliation Part 2
Complaints about the carrying out of regulated building Division 1
services or home building work contract matters
s. 6
1 (b) any preliminary action required before making a
2 complaint under this section.
3 (6) A complaint under this section must be --
4 (a) made in a manner and form approved by the Building
5 Commissioner; and
6 (b) accompanied by the prescribed fee, if any.
7 6. Time limit for complaint
8 (1) A building service complaint is made out of time if the
9 complaint is made more than 6 years after the completion of the
10 regulated building service to which the complaint relates.
11 (2) For the purposes of subsection (1) a regulated building service
12 is taken to be completed --
13 (a) if the criteria for determining the date of completion for
14 that building service are prescribed -- on the date
15 determined in accordance with the criteria;
16 (b) if paragraph (a) does not apply -- on the date on which
17 the building service was last carried out.
18 (3) A HBWC complaint is made out of time if --
19 (a) the Home Building Contracts Act 1991 section 8(3)
20 applies to the complaint and the complaint is not made
21 within the time specified in that provision; or
22 (b) the complaint is about a matter referred to in the Home
23 Building Contracts Act 1991 section 17 (other than a
24 matter referred to in section 8(3) or a breach of
25 section 15) and is made more than 3 years after the
26 cause of action arose; or
27 (c) the complaint is about a breach of the Home Building
28 Contracts Act 1991 section 15 and is made more than
29 3 years after --
30 (i) the contract was entered into; or
31 (ii) the breach first occurred,
32 whichever is the later.
page 7
Building Services (Complaint Resolution and Administration) Bill 2010
Part 2 Complaints and conciliation
Division 1 Complaints about the carrying out of regulated building
services or home building work contract matters
s. 7
1 7. Preliminary decision by Building Commissioner
2 (1) After receiving a complaint under section 5 the Building
3 Commissioner must decide whether, and to what extent --
4 (a) to accept it; or
5 (b) to refuse to accept it.
6 (2) The Building Commissioner may make such inquiries as are
7 appropriate to enable the making of a decision under this
8 section.
9 (3) The Building Commissioner may refuse to accept a complaint
10 under subsection (1) if --
11 (a) the complaint is not made in accordance with this Act;
12 or
13 (b) the Building Commissioner is not satisfied that the
14 complainant has taken preliminary action prescribed
15 under section 5(5)(b); or
16 (c) the complaint is made out of time as referred to in
17 section 6; or
18 (d) in the opinion of the Building Commissioner, the
19 complaint is vexatious, misconceived, frivolous or
20 without substance; or
21 (e) the matter complained about is the subject of another
22 complaint under this Act; or
23 (f) an arbitrator or other person or a court or other body has
24 made an order, judgment or other finding about the
25 matter complained about; or
26 (g) the matter complained about has been the subject of a
27 previous complaint to the Building Commissioner that
28 has been refused or in respect of which the Building
29 Commissioner has made a decision under
30 section 11(1)(a).
31 (4) Except as provided in subsection (5), if an issue raised in a
32 complaint has already been dealt with by the Building
page 8
Building Services (Complaint Resolution and Administration) Bill 2010
Complaints and conciliation Part 2
Complaints about the carrying out of regulated building Division 1
services or home building work contract matters
s. 8
1 Commissioner or a complaint about the issue has already been
2 referred to the State Administrative Tribunal under this Act, the
3 Building Commissioner may refuse to accept the complaint to
4 the extent to which it relates to that issue.
5 (5) Subsections (3)(e) and (4) do not operate to prevent an issue
6 being dealt with both as a disciplinary complaint and as a
7 complaint under section 5.
8 8. Further information and verification
9 (1) The Building Commissioner may, in writing, require a person
10 making a complaint under section 5 to do either or both of the
11 following --
12 (a) give the Building Commissioner further details about
13 the complaint;
14 (b) verify any details about the complaint by statutory
15 declaration.
16 (2) The Building Commissioner may specify in the requirement a
17 reasonable time within which the person must comply with the
18 requirement.
19 (3) The Building Commissioner may refuse to accept a complaint if
20 the person making the complaint does not comply with a
21 requirement under subsection (1) within the time specified in
22 the requirement or, if no time is so specified, within a
23 reasonable time.
24 9. Investigation
25 (1) Having accepted a building service complaint or a HBWC
26 complaint, the Building Commissioner must cause an
27 investigation of the complaint to be carried out by one or more
28 authorised persons.
29 (2) The Building Commissioner may, in addition to taking action
30 under subsection (1) in relation to a complaint, and whether
31 before or after receiving a report on the investigation of the
page 9
Building Services (Complaint Resolution and Administration) Bill 2010
Part 2 Complaints and conciliation
Division 1 Complaints about the carrying out of regulated building
services or home building work contract matters
s. 10
1 complaint, forward the complaint to either or both of the
2 following --
3 (a) the relevant permit authority for the relevant building, if
4 any;
5 (b) if the Building Commissioner is of the opinion that a
6 matter raised in the complaint is of relevance to a
7 vocational regulatory body, that body.
8 10. Report on complaint
9 (1) An authorised person --
10 (a) must prepare a report on an investigation carried out
11 under section 9; and
12 (b) may include in the report recommendations as to the
13 manner in which the complaint should be dealt with; and
14 (c) must give the Building Commissioner a copy of the
15 report.
16 (2) The Building Commissioner may give a copy of the report to
17 any or all of the following --
18 (a) the complainant and the respondent;
19 (b) the relevant permit authority for the relevant building, if
20 any;
21 (c) if the Building Commissioner is of the opinion that a
22 matter raised in the report is of relevance to a vocational
23 regulatory body, that body.
24 11. Action after report
25 (1) The Building Commissioner must consider any report given to
26 the Building Commissioner under section 10 and may, subject
27 to the other provisions of this section --
28 (a) dismiss the complaint; or
29 (b) commence a conciliation proceeding under Division 3;
30 or
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Building Services (Complaint Resolution and Administration) Bill 2010
Complaints and conciliation Part 2
Complaints about the carrying out of regulated building Division 1
services or home building work contract matters
s. 12
1 (c) deal with the complaint under section 37 or 42, as the
2 case requires; or
3 (d) refer the complaint to the State Administrative Tribunal
4 for it to deal with under section 38 or 43, as the case
5 requires.
6 (2) The Building Commissioner may adopt some or all of the
7 recommendations, if any, in the report but is not required to
8 adopt the recommendations.
9 (3) The Building Commissioner must dismiss a complaint if it is
10 made out of time as referred to in section 6.
11 (4) A complaint by an owner referred to in the Home Building
12 Contracts Act 1991 section 17 about a breach of section 15 or
13 15A of that Act --
14 (a) must not be dismissed under this section unless it is
15 made out of time; and
16 (b) if not dismissed, must be referred to the State
17 Administrative Tribunal for it to deal with under
18 section 43.
19 (5) The regulations may prescribe circumstances in which the
20 Building Commissioner must deal with the complaint by
21 referring the complaint to the State Administrative Tribunal for
22 it to deal with under section 38 or 43, as the case requires.
23 12. Building Commissioner not party to proceeding before State
24 Administrative Tribunal
25 If the Building Commissioner refers a complaint to the State
26 Administrative Tribunal under section 11(1)(d) --
27 (a) the complainant is to be taken to be the applicant for the
28 purposes of the State Administrative Tribunal Act 2004;
29 and
30 (b) the Building Commissioner is not a party to any
31 proceeding in respect of the referral unless joined as a
32 party under the State Administrative Tribunal Act 2004
33 section 38.
page 11
Building Services (Complaint Resolution and Administration) Bill 2010
Part 2 Complaints and conciliation
Division 2 Complaints about disciplinary matters
s. 13
1 13. Withdrawal of complaint
2 (1) A building service complaint or a HBWC complaint may,
3 subject to this section, be withdrawn by the complainant.
4 (2) The complaint may be withdrawn even though the Building
5 Commissioner has commenced or completed an investigation of
6 the complaint, but cannot be withdrawn if the complaint has
7 been referred to the State Administrative Tribunal.
8 (3) This section extends to the withdrawal of a complaint so far as it
9 relates to some only or part only of the matters that form the
10 subject of the complaint.
11 (4) This section does not limit the powers of the State
12 Administrative Tribunal under the State Administrative Tribunal
13 Act 2004 section 46.
14 Division 2 -- Complaints about disciplinary matters
15 14. Application of this Division
16 (1) This Division applies, with any necessary modifications, to --
17 (a) a former registered building service provider; and
18 (b) a former approved owner-builder,
19 in relation to a disciplinary matter occurring while that person
20 was a registered building service provider or approved
21 owner-builder in the same way as it applies to a person who is a
22 registered building service provider or approved owner-builder.
23 (2) The Building Services (Registration) Act 2010 sections 117 and
24 130 apply in respect of a complaint about conduct occurring
25 while a person was registered under the Builders' Registration
26 Act 1939 or the Painters' Registration Act 1961.
27 15. Making a complaint about a disciplinary matter
28 (1) Subject to the regulations, a person may make a complaint to
29 the Building Commissioner about the alleged occurrence of a
page 12
Building Services (Complaint Resolution and Administration) Bill 2010
Complaints and conciliation Part 2
Complaints about disciplinary matters Division 2
s. 16
1 disciplinary matter in relation to a registered building service
2 provider or an approved owner-builder.
3 (2) A complaint that is both a complaint about a matter referred to
4 in section 5(1) or (2) and a complaint about a matter referred to
5 in subsection (1) may be dealt with by the Building
6 Commissioner as if there were a complaint under this section
7 and a complaint under section 5.
8 (3) The regulations may make provision as to who can make a
9 disciplinary complaint.
10 (4) A disciplinary complaint must be made in a manner and form
11 approved by the Building Commissioner.
12 16. Preliminary decision by Building Commissioner
13 (1) After receiving a disciplinary complaint the Building
14 Commissioner must decide whether, and to what extent --
15 (a) to accept it; or
16 (b) to refuse to accept it.
17 (2) The Building Commissioner may make such inquiries as are
18 appropriate to enable the making of a decision under this
19 section.
20 (3) The Building Commissioner may refuse to accept a disciplinary
21 complaint under subsection (1) if --
22 (a) the complaint is not made in accordance with this Act;
23 or
24 (b) the complaint is made more than 6 years after the
25 alleged occurrence of the disciplinary matter; or
26 (c) in the opinion of the Building Commissioner, the
27 complaint is vexatious, misconceived, frivolous or
28 without substance; or
29 (d) the matter complained about is the subject of another
30 complaint under this Act; or
page 13
Building Services (Complaint Resolution and Administration) Bill 2010
Part 2 Complaints and conciliation
Division 2 Complaints about disciplinary matters
s. 17
1 (e) an arbitrator or other person or a court or other body has
2 made an order, judgment or other finding about the
3 matter complained about; or
4 (f) the matter complained about has been the subject of a
5 previous complaint to the Building Commissioner that
6 has been refused.
7 (4) Except as provided in subsection (5), if an issue raised in a
8 complaint has already been dealt with by the Building
9 Commissioner, or a complaint about the issue has already been
10 forwarded to the Building Services Board under this Act, the
11 Building Commissioner may refuse to accept the complaint to
12 the extent to which it relates to that issue.
13 (5) Subsection (4) does not operate to prevent an issue being dealt
14 with both in relation to a complaint about a disciplinary matter
15 and as a building service complaint or a HBWC complaint.
16 17. Building Commissioner may deal with matter as if it were
17 subject of disciplinary complaint
18 If the Building Commissioner is of the opinion that there is
19 cause to investigate whether a disciplinary matter exists or has
20 occurred, the Building Commissioner may decide that the
21 matter is to be dealt with as if it were a disciplinary complaint
22 accepted by the Building Commissioner despite no complaint
23 having been made to the Building Commissioner about the
24 matter.
25 18. Further information and verification
26 (1) The Building Commissioner may, in writing, require a person
27 making a disciplinary complaint to do either or both of the
28 following --
29 (a) give the Building Commissioner further details about
30 the complaint;
31 (b) verify any details about the complaint by statutory
32 declaration.
page 14
Building Services (Complaint Resolution and Administration) Bill 2010
Complaints and conciliation Part 2
Complaints about disciplinary matters Division 2
s. 19
1 (2) The Building Commissioner may specify in the requirement a
2 reasonable time within which the person must comply with the
3 requirement.
4 (3) The Building Commissioner may refuse to accept a complaint if
5 the person making the complaint does not comply with a
6 requirement under subsection (1) within the time specified in
7 the requirement or, if no time is so specified, within a
8 reasonable time.
9 19. Action in respect of accepted disciplinary complaint
10 (1) Having accepted a disciplinary complaint, the Building
11 Commissioner must take either or both of the following
12 actions --
13 (a) cause an investigation of the complaint to be carried out
14 by one or more authorised persons;
15 (b) forward the complaint to the Building Services Board.
16 (2) A disciplinary complaint must be investigated if it is referred to
17 the Building Commissioner under the Building Services
18 (Registration) Act 2010 section 51(2)(c) or 56(2)(c).
19 20. Report on complaint
20 (1) An authorised person --
21 (a) must prepare a report on the investigation of a
22 disciplinary complaint; and
23 (b) may include in the report recommendations as to the
24 manner in which the complaint should be dealt with; and
25 (c) must give the Building Commissioner a copy of the
26 report.
27 (2) If the Building Commissioner is of the opinion that a matter
28 raised in the report is of relevance to a vocational regulatory
29 body, the Building Commissioner may give a copy of the report
30 to that body.
page 15
Building Services (Complaint Resolution and Administration) Bill 2010
Part 2 Complaints and conciliation
Division 2 Complaints about disciplinary matters
s. 21
1 21. Action after report
2 (1) The Building Commissioner must consider a report on the
3 investigation of a disciplinary complaint given to the Building
4 Commissioner under section 20 and may --
5 (a) dismiss the complaint; or
6 (b) forward the complaint and the report to the Building
7 Services Board for it to deal with under the Building
8 Services (Registration) Act 2010.
9 (2) If the Building Commissioner forwards a complaint to the
10 Building Services Board under subsection (1), the Building
11 Commissioner may make such recommendations to the Board
12 as the Building Commissioner thinks fit.
13 (3) If a report is of the investigation of a complaint that has already
14 been forwarded to the Building Services Board, the Building
15 Commissioner must give the Board a copy of the report and
16 may make such recommendations to the Board as the Building
17 Commissioner thinks fit.
18 22. Withdrawal of complaint
19 (1) A disciplinary complaint may, subject to this section, be
20 withdrawn by the complainant.
21 (2) A disciplinary complaint may be withdrawn even though the
22 Building Commissioner has commenced or completed an
23 investigation of the complaint, but cannot be withdrawn without
24 the leave of the Building Services Board.
25 (3) This section extends to the withdrawal of a complaint so far as it
26 relates to some only or part only of the matters that form the
27 subject of the complaint.
page 16
Building Services (Complaint Resolution and Administration) Bill 2010
Complaints and conciliation Part 2
Conciliation Division 3
s. 23
1 Division 3 -- Conciliation
2 23. Role of conciliator
3 (1) In this section --
4 conciliator means a person who is --
5 (a) a public service officer whose duties consist of or
6 include the conciliation of complaints under this Act; or
7 (b) approved by the Building Commissioner as a person
8 who may act as a conciliator under this Act.
9 (2) If --
10 (a) the Building Commissioner decides under
11 section 11(1)(b) to commence a conciliation proceeding
12 in respect of a complaint; or
13 (b) under the Building Services (Registration) Act 2010
14 section 51(2)(b) or 56(2)(b) the Building Services Board
15 refers a complaint about a disciplinary matter to the
16 Building Commissioner for a conciliation proceeding,
17 the Building Commissioner must assign the conciliation
18 proceeding to a conciliator.
19 (3) A conciliation proceeding may be commenced with or without
20 the consent of the parties.
21 (4) A conciliator's function is to encourage the settlement of a
22 complaint and for that purpose the conciliator may --
23 (a) communicate with the parties; and
24 (b) arrange for the parties to hold conferences about the
25 complaint and facilitate the conduct of those
26 conferences; and
27 (c) give advice and make recommendations to assist in the
28 reaching of an agreement.
page 17
Building Services (Complaint Resolution and Administration) Bill 2010
Part 2 Complaints and conciliation
Division 3 Conciliation
s. 24
1 (5) The conciliator may have regard to a report of the investigation
2 of the complaint prepared under section 10 or 20 when giving
3 advice and making recommendations.
4 24. Parties to conciliation proceeding
5 (1) The complainant and the respondent are parties to a conciliation
6 proceeding about a building service complaint or a HBWC
7 complaint.
8 (2) The Building Services Board, the complainant and the
9 respondent are parties to a conciliation proceeding about a
10 disciplinary complaint.
11 25. Attendance at conciliation proceeding
12 (1) The Building Commissioner may, by written notice, require a
13 party to a conciliation proceeding to appear before a conciliator
14 at the proceeding, either separately or with other parties.
15 (2) A person who has been given a notice under subsection (1) must
16 not, without reasonable excuse, fail to appear as required by the
17 Building Commissioner.
18 Penalty: a fine of $5 000.
19 26. Representation at conciliation proceeding
20 (1) A party is not to be represented by another person during a
21 conciliation proceeding unless the Building Commissioner
22 otherwise determines on the ground that the proceeding will not
23 work effectively without that representation.
24 (2) Subsection (1) does not prevent --
25 (a) the representation of a party who is not a natural person
26 by an officer, employee or agent of that party who is not
27 a legal practitioner; or
28 (b) the personal attendance of any other person who may, in
29 the opinion of the conciliator, help in the conciliation
30 proceeding.
page 18
Building Services (Complaint Resolution and Administration) Bill 2010
Complaints and conciliation Part 2
Conciliation Division 3
s. 27
1 27. Building Commissioner may make orders to give effect to
2 agreement
3 (1) The Building Commissioner may, with the consent of each of
4 the parties to an agreement negotiated under this Division, by
5 order give effect to the agreement.
6 (2) An order referred to in subsection (1) --
7 (a) is final and binding on those parties; and
8 (b) if the relevant complaint was about a disciplinary
9 matter, may include an order that the Building Services
10 Board take action under the Building Services
11 (Registration) Act 2010 section 57 as specified in the
12 order; and
13 (c) if the relevant complaint was a building service
14 complaint, may include a building remedy order; and
15 (d) if the relevant complaint was a HBWC complaint, may
16 include a HBWC remedy order.
17 28. Evidence of certain things inadmissible
18 (1) Evidence of anything lawfully said or done in the course of a
19 conciliation proceeding --
20 (a) is not admissible in any proceeding before a court,
21 tribunal or other body unless subsection (2) applies; and
22 (b) cannot be used as a ground for a complaint under this
23 Act.
24 (2) Evidence referred to in subsection (1) is admissible in a
25 proceeding if --
26 (a) the parties to the conciliation proceeding consent to the
27 admission of the evidence; or
28 (b) there is a dispute in the proceeding as to whether the
29 parties to the conciliation proceeding entered into an
30 agreement for the purposes of section 27 and the
31 evidence is relevant to that dispute; or
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Building Services (Complaint Resolution and Administration) Bill 2010
Part 2 Complaints and conciliation
Division 3 Conciliation
s. 29
1 (c) the proceeding is for the purpose of enforcing an order
2 made under section 27.
3 29. Action if conciliation fails
4 (1) If, in relation to a building service complaint or a HBWC
5 complaint --
6 (a) the conciliation proceeding fails to result in an
7 agreement between the parties on part or all of the
8 matters that form the subject of the complaint; or
9 (b) the Building Commissioner is satisfied that a party is not
10 cooperating with the conciliation proceeding; or
11 (c) the Building Commissioner is not satisfied with the
12 result of the conciliation proceeding,
13 the Building Commissioner must take further action under
14 section 11(1).
15 (2) If, in relation to a disciplinary complaint --
16 (a) the conciliation proceeding fails to result in an
17 agreement between the parties on part or all of the
18 matters that form the subject of the complaint; or
19 (b) the Building Commissioner is satisfied that a party is not
20 cooperating with the conciliation proceeding; or
21 (c) the Building Commissioner is not satisfied with the
22 result of the conciliation proceeding,
23 the Building Commissioner must return the complaint to the
24 Building Services Board.
page 20
Building Services (Complaint Resolution and Administration) Bill 2010
Orders Part 3
Interim Orders Division 1
s. 30
1 Part 3 -- Orders
2 Division 1 -- Interim Orders
3 30. Interim building service order
4 (1) If, at any time before a building remedy order is made in respect
5 of a building service complaint accepted by the Building
6 Commissioner, the Building Commissioner is of the opinion
7 that --
8 (a) a person has carried out, or is carrying out, the regulated
9 building service complained about in a manner that is
10 likely to be found to be not proper or proficient or to be
11 faulty or unsatisfactory; and
12 (b) it is likely that the person will continue to carry out the
13 regulated building service in that manner; and
14 (c) there is a risk a person or persons may suffer significant
15 loss or damage as a result of the carrying out of the
16 regulated building service in that manner if immediate
17 action is not taken,
18 the Building Commissioner may, without further inquiry or
19 investigation, make an interim building service order pending
20 determination of the building service complaint.
21 (2) An interim building service order may do either or both of the
22 following --
23 (a) prohibit the carrying out of a regulated building service
24 specified in the order by the person who carried out or is
25 carrying out the regulated building service complained
26 about;
27 (b) require the person who carried out or is carrying out the
28 regulated building service complained about to comply
29 with such conditions as the Building Commissioner
30 thinks fit in relation to the carrying out of a regulated
31 building service specified in the order.
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Building Services (Complaint Resolution and Administration) Bill 2010
Part 3 Orders
Division 1 Interim Orders
s. 31
1 (3) An interim building service order must --
2 (a) state the reasons for making the order; and
3 (b) advise that the order will remain in force for 28 days
4 unless it is sooner revoked under section 33 or the
5 building service complaint in relation to which it is
6 made is referred to the State Administrative Tribunal.
7 (4) An interim building service order ceases to be in force 28 days
8 after it is given to the person bound by the order, unless it is
9 sooner revoked under section 33 or the building service
10 complaint in relation to which it is given is referred to the State
11 Administrative Tribunal.
12 (5) If the building service complaint in relation to which an interim
13 building service order is in force is referred to the State
14 Administrative Tribunal, the interim building service order
15 remains in force until it is revoked by the Tribunal or the
16 Tribunal makes a final determination in respect of the building
17 service complaint.
18 31. Interim disciplinary order
19 (1) If the Building Services Board has by notice in writing under
20 the Building Services (Registration) Act 2010 section 55
21 required the Building Commissioner to make an interim
22 disciplinary order under this section in relation to a registered
23 building service provider, the Building Commissioner must
24 make the interim disciplinary order pending determination of a
25 complaint about the registered building service provider.
26 (2) An interim disciplinary order may suspend the registered
27 building service provider's registration, either generally or in
28 relation to any circumstances or regulated building services
29 specified in the order.
30 (3) An interim disciplinary order must --
31 (a) state the reasons for making the order; and
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Building Services (Complaint Resolution and Administration) Bill 2010
Orders Part 3
Interim Orders Division 1
s. 32
1 (b) advise that the order will remain in force for 28 days
2 unless it is sooner revoked under section 33 or the
3 Building Services Board makes an allegation about the
4 disciplinary complaint to the State Administrative
5 Tribunal.
6 (4) Within 7 days of the making of an interim disciplinary order the
7 Building Commissioner must --
8 (a) give a copy of the order to the Building Services Board;
9 and
10 (b) seek the recommendation of the Building Services
11 Board as to further action to be taken.
12 (5) An interim disciplinary order ceases to be in force 28 days after
13 it is given to the person bound by the order, unless it is sooner
14 revoked under section 33 or the Building Services Board makes
15 an allegation about the disciplinary complaint in relation to
16 which it is given to the State Administrative Tribunal.
17 (6) If an allegation is made to the State Administrative Tribunal
18 about a complaint in relation to which an interim disciplinary
19 order is in force, the order remains in force until it is revoked by
20 the Tribunal or an allegation about the disciplinary complaint is
21 finally determined by the Tribunal.
22 32. Effect of interim order
23 (1) The Building Commissioner may make an interim order with
24 respect to a matter about which a complaint has been made even
25 if the complaint, or an element of the complaint, is already
26 being dealt with under this Act or the Building Services
27 (Registration) Act 2010.
28 (2) An interim order has effect --
29 (a) from the time it is given to the person who is bound by
30 the order; and
page 23
Building Services (Complaint Resolution and Administration) Bill 2010
Part 3 Orders
Division 1 Interim Orders
s. 33
1 (b) whether or not the person to whom it is given has had an
2 opportunity to make representations to the Building
3 Services Board or the Building Commissioner.
4 (3) If, under section 31(2), the registration of a person is suspended,
5 the person is to be taken to be not registered to the extent of the
6 suspension during the period of suspension.
7 33. Revocation or variation of interim order
8 (1) The Building Commissioner may, by order, at any time before a
9 building service complaint in relation to which an interim
10 building service order has been made is referred to the State
11 Administrative Tribunal, vary or revoke the interim building
12 service order.
13 (2) The Building Commissioner must, by order, if required to do so
14 by the Building Services Board, vary or revoke an interim
15 disciplinary order in accordance with the requirements of the
16 Board but cannot otherwise vary or revoke an interim
17 disciplinary order.
18 (3) The Building Commissioner cannot vary or revoke an interim
19 disciplinary order under subsection (2) if an allegation about the
20 complaint in relation to which the order was made has been
21 made to the State Administrative Tribunal.
22 34. Jurisdiction of State Administrative Tribunal
23 (1) If a building service complaint in relation to which an interim
24 building service order is in force is referred to the State
25 Administrative Tribunal, the Tribunal may affirm, revoke or
26 vary the order pending final determination of the complaint.
27 (2) If an allegation to the State Administrative Tribunal is made
28 about a disciplinary complaint in relation to which an interim
29 disciplinary order is in force, the Tribunal may affirm, revoke or
30 vary the order pending final determination of the allegation.
page 24
Building Services (Complaint Resolution and Administration) Bill 2010
Orders Part 3
Building remedy orders Division 2
s. 35
1 (3) Nothing in subsection (1) or (2) limits or restricts the functions
2 of the State Administrative Tribunal in respect of a complaint
3 under this Act about a matter in respect of which an interim
4 order is in force.
5 35. Publication of interim order
6 The Building Commissioner may provide a copy of an interim
7 order to any person the Building Commissioner considers
8 should be advised of the order.
9 Division 2 -- Building remedy orders
10 36. Building remedy order
11 (1) A building remedy order consists of one of the following --
12 (a) an order that a person who carried out a regulated
13 building service remedy the building service as specified
14 in the order;
15 (b) an order that a person who carried out a regulated
16 building service pay to an aggrieved person such costs
17 of remedying the building service as the Building
18 Commissioner or State Administrative Tribunal, as the
19 case requires, considers reasonable and specifies in the
20 order;
21 (c) an order that a person who carried out a regulated
22 building service pay to an aggrieved person a sum of
23 money specified in the order to compensate the
24 aggrieved person for the failure to carry out the building
25 service in a proper and proficient manner or for faulty or
26 unsatisfactory building work.
27 (2) A building remedy order may require that the order be complied
28 with within a time specified in the order.
29 (3) A person who is not a building service contractor may arrange
30 for a building service to be carried out for the purpose of
31 compliance by that person with a building remedy order referred
page 25
Building Services (Complaint Resolution and Administration) Bill 2010
Part 3 Orders
Division 2 Building remedy orders
s. 37
1 to in subsection (1)(a) despite the Building Services
2 (Registration) Act 2010 section 7.
3 37. Building remedy order by Building Commissioner
4 (1) Subject to regulations made under section 11(5), if the Building
5 Commissioner is satisfied that a regulated building service that
6 is the subject of a building service complaint has not been
7 carried out in a proper and proficient manner or is faulty or
8 unsatisfactory, the Building Commissioner may deal with the
9 building service complaint by making a building remedy order.
10 (2) The Building Commissioner cannot make a building remedy
11 order requiring --
12 (a) work to be done of a value estimated by the Building
13 Commissioner to exceed the prescribed amount; or
14 (b) an amount exceeding the prescribed amount to be paid,
15 unless the respondent consents to the order being made.
16 (3) Unless a greater amount is prescribed by the regulations, in
17 subsection (2) the prescribed amount is $100 000.
18 (4) The Building Commissioner may make any ancillary or
19 incidental order the Building Commissioner considers
20 appropriate.
21 38. How State Administrative Tribunal may deal with building
22 service complaint
23 (1) If the Building Commissioner refers a building service
24 complaint to the State Administrative Tribunal, the Tribunal
25 may --
26 (a) if the Tribunal is satisfied that the regulated building
27 service that is the subject of the building service
28 complaint has not been carried out in a proper and
29 proficient manner or is faulty or unsatisfactory, deal
30 with the building service complaint by making a
31 building remedy order; or
32 (b) otherwise, decline to make a building remedy order.
page 26
Building Services (Complaint Resolution and Administration) Bill 2010
Orders Part 3
Building remedy orders Division 2
s. 39
1 (2) The State Administrative Tribunal cannot make a building
2 remedy order requiring a respondent who is not a registered
3 building services provider --
4 (a) to do any work of a value estimated by the Tribunal to
5 exceed the prescribed amount; or
6 (b) to pay any amount exceeding the prescribed amount,
7 unless --
8 (c) the order is made in respect of a building service that
9 has been carried out by the respondent in contravention
10 of the Building Services (Registration) Act 2010
11 section 7; or
12 (d) the respondent consents to the order being made.
13 (3) Unless a greater amount is prescribed by the regulations, in
14 subsection (2) the prescribed amount is $500 000.
15 (4) Nothing in this section prevents a building service complaint
16 from being dealt with through a compulsory conference or
17 mediation process under the State Administrative Tribunal
18 Act 2004.
19 39. Order for payment before building remedy order
20 (1) In this section --
21 responsible adjudicator means --
22 (a) in the case of a building service complaint that has not
23 been referred to the State Administrative Tribunal, the
24 Building Commissioner;
25 (b) in the case of a building service complaint that has been
26 referred to the State Administrative Tribunal, the
27 Tribunal.
28 (2) At any time before a building remedy order is made in respect
29 of a building service complaint, the responsible adjudicator
30 may, if the responsible adjudicator considers it just and
31 expedient to do so, order an amount of money to be paid to the
page 27
Building Services (Complaint Resolution and Administration) Bill 2010
Part 3 Orders
Division 2 Building remedy orders
s. 40
1 responsible adjudicator by either the complainant or the
2 respondent or by both of them.
3 (3) An order is not to be made under subsection (2) against a party
4 merely on account of the poor financial position of that party.
5 (4) A responsible adjudicator may, at any time before a building
6 remedy order is made in respect of a building service complaint,
7 vary or cancel an order made under subsection (2) in relation to
8 the matter.
9 (5) Any amount paid to a responsible adjudicator under this section
10 must be credited to the Building Services Account.
11 (6) On the making of a building remedy order, the responsible
12 adjudicator making the order must make an order as to payment
13 of any amount credited to the Building Services Account under
14 this section in relation to the building service complaint in
15 respect of which the building remedy order is made.
16 (7) Any amount credited to the Building Services Account under
17 this section must be paid from the Account in accordance with
18 the order of a responsible adjudicator.
19 (8) If a party fails to comply with an order made under
20 subsection (2) a responsible adjudicator may determine the
21 building service complaint adversely to the party that has failed
22 to comply and make any appropriate orders.
23 40. Building remedy order does not prevent disciplinary action
24 The making of a building remedy order does not limit or affect
25 in any way the power of the Building Services Board or the
26 State Administrative Tribunal to deal with a disciplinary matter
27 under the Building Services (Registration) Act 2010 that
28 involves the same issue as is dealt with in the building remedy
29 order.
page 28
Building Services (Complaint Resolution and Administration) Bill 2010
Orders Part 3
HBWC remedy orders Division 3
s. 41
1 Division 3 -- HBWC remedy orders
2 41. HBWC remedy orders
3 (1) In this section --
4 specified means specified in the HBWC order.
5 (2) A HBWC remedy order in respect of a complaint by an owner
6 or builder under a home building work contract referred to in
7 the Home Building Contracts Act 1991 section 17 (other than a
8 complaint about a breach of section 15 of that Act) consists of
9 one or more of the following --
10 (a) an order --
11 (i) restraining any specified action in breach of the
12 contract or of a provision in the Home Building
13 Contracts Act 1991 Part 2;
14 (ii) requiring any specified work to be done in the
15 performance of the contract;
16 (iii) requiring any specified work to be done to ensure
17 compliance with a provision of the Home
18 Building Contracts Act 1991 Part 2;
19 (iv) requiring any specified work to be done to
20 remedy a breach of the contract or of a provision
21 of the Home Building Contracts Act 1991 Part 2;
22 (b) an order that a person pay a specified amount payable
23 under the contract;
24 (c) an order declaring that a specified amount is not payable
25 to a person under the contract and, if already paid, an
26 order that the builder or owner repay that amount;
27 (d) an order that a person pay specified compensation for
28 loss or damage --
29 (i) caused by any breach of the contract or of a
30 provision of the Home Building Contracts
31 Act 1991 Part 2; or
page 29
Building Services (Complaint Resolution and Administration) Bill 2010
Part 3 Orders
Division 3 HBWC remedy orders
s. 41
1 (ii) referred to in the Home Building Contracts
2 Act 1991 Schedule 1;
3 (e) an order declaring that a specified amount of money
4 claimed or money claimed for specified work is not
5 payable by a person.
6 (3) A HBWC remedy order in respect of a complaint by an owner
7 referred to in the Home Building Contracts Act 1991 section 17
8 about a breach of section 15 of that Act consists of one or more
9 of the following --
10 (a) an order declaring the contract or any provision of the
11 contract against which relief is sought to be void from
12 the beginning;
13 (b) an order modifying the provisions of the contract in such
14 manner as the State Administrative Tribunal considers
15 just;
16 (c) an order providing for the repayment to the owner of
17 any specified amount paid by the owner under a contract
18 or a provision that has been declared void or modified as
19 referred to in paragraph (a) or (b).
20 (4) A HBWC remedy order in respect of a complaint by an owner
21 or builder under a home building work contract referred to in
22 the Home Building Contracts Act 1991 section 20 consists of --
23 (a) an order providing for the return or repayment of the
24 whole or part of any specified consideration, or the
25 specified value of any consideration, given by the owner
26 under or in relation to the contract; or
27 (b) an order providing for specified payment to the builder
28 in respect of --
29 (i) any materials supplied by the builder; or
30 (ii) any home building work or other services
31 performed by the builder; or
page 30
Building Services (Complaint Resolution and Administration) Bill 2010
Orders Part 3
HBWC remedy orders Division 3
s. 42
1 (iii) costs, including overhead expenses and loss of
2 profit, incurred by the builder,
3 under or in relation to the contract.
4 (5) A HBWC remedy order in respect of a complaint by an owner
5 under a home building work contract about a price increase
6 referred to in the Home Building Contracts Act 1991 Schedule 1
7 clause 5 consists of an order confirming, varying or disallowing
8 the amount of the price increase.
9 (6) If a HBWC remedy order referred to in subsection (5) is made
10 in respect of a complaint by an owner under a home building
11 work contract, the contract has effect in accordance with the
12 HBWC remedy order.
13 (7) A HBWC remedy order may require that the order be complied
14 with within a time specified in the order.
15 42. HBWC remedy order by Building Commissioner
16 (1) Subject to regulations made under section 11(5), the Building
17 Commissioner may deal with a HBWC complaint by making a
18 HBWC remedy order referred to in section 41(2), (4) or (5) if
19 satisfied that the order is justified.
20 (2) The Building Commissioner cannot make a HBWC remedy
21 order requiring a party --
22 (a) to do work of a value estimated by the Building
23 Commissioner to exceed the prescribed amount; or
24 (b) to pay an amount exceeding the prescribed amount,
25 unless the party to be bound by the order consents to the order
26 being made.
27 (3) Unless a greater amount is prescribed by the regulations, in
28 subsection (2) the prescribed amount is $100 000.
29 (4) The Building Commissioner may make any ancillary or
30 incidental order the Building Commissioner considers
31 appropriate.
page 31
Building Services (Complaint Resolution and Administration) Bill 2010
Part 3 Orders
Division 3 HBWC remedy orders
s. 43
1 43. How State Administrative Tribunal may deal with HBWC
2 complaint
3 (1) If the Building Commissioner refers a HBWC complaint to the
4 State Administrative Tribunal, the Tribunal may --
5 (a) if satisfied that the order is justified, make a HBWC
6 remedy order; or
7 (b) otherwise, decline to make the order.
8 (2) The State Administrative Tribunal cannot make a HBWC
9 remedy order requiring a party --
10 (a) to do work of a value estimated by the Tribunal to
11 exceed the prescribed amount; or
12 (b) to pay an amount exceeding the prescribed amount,
13 unless the party consents to the order being made.
14 (3) Unless a greater amount is prescribed by the regulations, in
15 subsection (2) the prescribed amount is $500 000.
16 (4) Nothing in this section prevents a HBWC complaint from being
17 dealt with through a compulsory conference or mediation
18 process under the State Administrative Tribunal Act 2004.
19 44. Order for payment before HBWC remedy order
20 (1) In this section --
21 responsible adjudicator means --
22 (a) in the case of a HBWC complaint that has not been
23 referred to the State Administrative Tribunal, the
24 Building Commissioner;
25 (b) in the case of a HBWC complaint that has been referred
26 to the State Administrative Tribunal, the Tribunal.
27 (2) At any time before a HBWC remedy order is made in respect of
28 a HBWC complaint, the responsible adjudicator may, if the
29 responsible adjudicator considers it just and expedient to do so,
30 order an amount of money to be paid to the responsible
page 32
Building Services (Complaint Resolution and Administration) Bill 2010
Orders Part 3
HBWC remedy orders Division 3
s. 45
1 adjudicator by either the owner or the builder or by both of
2 them.
3 (3) An order is not to be made under subsection (2) against an
4 owner or builder merely on account of the poor financial
5 position of that party.
6 (4) A responsible adjudicator may, at any time before a HBWC
7 remedy order is made in respect of a HBWC complaint, vary or
8 cancel an order made under subsection (2) in relation to the
9 matter.
10 (5) Any amount paid to a responsible adjudicator under this section
11 must be credited to the Building Services Account.
12 (6) On the making of a HBWC remedy order the responsible
13 adjudicator making the order must make an order as to payment
14 of any amount credited to the Building Services Account under
15 this section in relation to the HBWC complaint in respect of
16 which the HBWC remedy order is made.
17 (7) Any amount credited to the Building Services Account under
18 this section must be paid from the Account in accordance with
19 the order of a responsible adjudicator.
20 (8) If a party fails to comply with an order made under
21 subsection (2) a responsible adjudicator may determine the
22 HBWC complaint adversely to the party that has failed to
23 comply and make any appropriate orders.
24 45. HBWC remedy order does not prevent disciplinary action
25 The making of a HBWC remedy order does not limit or affect in
26 any way the power of the Building Services Board or the State
27 Administrative Tribunal to deal with a disciplinary matter under
28 the Building Services (Registration) Act 2010 that involves the
29 same issue as is dealt with in the HBWC remedy order.
page 33
Building Services (Complaint Resolution and Administration) Bill 2010
Part 3 Orders
Division 4 Procedure, costs and enforcement of orders
s. 46
1 Division 4 -- Procedure, costs and enforcement of orders
2 46. Procedure of Building Commissioner
3 (1) In dealing with a building service complaint or a HBWC
4 complaint or making a building remedy order or a HBWC
5 remedy order the Building Commissioner --
6 (a) must act informally; and
7 (b) is not bound by the rules of evidence; and
8 (c) may inform himself or herself in any way the Building
9 Commissioner thinks fit.
10 (2) Subject to this Act, the Building Commissioner may determine
11 his or her own procedure.
12 47. Provision of information and documents to Building
13 Commissioner
14 (1) For the purpose of making a decision in relation to a building
15 remedy order or a HBWC remedy order, the Building
16 Commissioner may, by written notice, direct a person to do
17 either or both of the following --
18 (a) to provide, in writing and within a time specified in the
19 notice, the Building Commissioner with any information
20 or explanation that the Building Commissioner requires;
21 (b) to produce, within a time specified in the notice, to the
22 Building Commissioner any records in the custody or
23 under the control of the person.
24 (2) A person who, without reasonable excuse, fails to comply with
25 a direction under this section commits an offence.
26 Penalty: a fine of $10 000.
27 (3) The Building Commissioner's power to make a building remedy
28 order or a HBWC remedy order is not affected by the failure of
29 either or both of the parties to comply with a direction of the
30 Building Commissioner under this section.
page 34
Building Services (Complaint Resolution and Administration) Bill 2010
Orders Part 3
Procedure, costs and enforcement of orders Division 4
s. 48
1 (4) Nothing in this section limits the powers of the Building
2 Commissioner as an authorised person under Part 4.
3 48. Joining of parties in HBWC complaint about
4 unconscionable, harsh or oppressive conduct or contract
5 (1) In this section --
6 officer has the meaning given in the Corporations Act 2001
7 (Commonwealth) section 9.
8 (2) For the purposes of subsection (3), a person is an associate of
9 another person if --
10 (a) the person is a partner of the latter person; or
11 (b) where the latter person is a company, the person is a
12 shareholder or officer of that company.
13 (3) Where it appears to the State Administrative Tribunal in a
14 proceeding in respect of a HBWC complaint about a breach of
15 the Home Building Contracts Act 1991 section 15 that a person
16 is an associate of a party to the proceeding and has or may
17 have --
18 (a) shared in the profits of; or
19 (b) a beneficial interest in,
20 the transaction in question, the person may be joined as a party
21 to the proceeding and the Tribunal may make such orders
22 against, or in respect of, that person as the Tribunal considers
23 just.
24 (4) This section does not limit the powers of the State
25 Administrative Tribunal under the State Administrative Tribunal
26 Act 2004 section 38.
27 49. Costs and expenses
28 (1) Subject to this section, the Building Commissioner or the State
29 Administrative Tribunal may make such orders for costs as they
30 think fit in relation to proceedings arising from a building
31 service complaint or a HBWC complaint.
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Division 4 Procedure, costs and enforcement of orders
s. 49
1 (2) The Building Commissioner must not award costs to a party for
2 the services of a representative of that party unless, in the
3 opinion of the Building Commissioner, it is fair to do so, having
4 regard to --
5 (a) whether a party has acted in relation to a complaint in a
6 way that unnecessarily disadvantaged another party; or
7 (b) whether a party has been responsible for prolonging
8 unreasonably the time taken to deal with the complaint;
9 or
10 (c) the relative strengths of the claims made by each of the
11 parties; or
12 (d) any other matter the Building Commissioner considers
13 relevant.
14 (3) If the Building Commissioner or the State Administrative
15 Tribunal is of the opinion that the costs and expenses were
16 unnecessarily incurred due to the conduct of a party, the
17 Building Commissioner or Tribunal may make an order
18 requiring the party to pay all or any specified part of the costs
19 and expenses incurred under this Act in investigating the
20 complaint.
21 (4) An order may be made under subsection (3) even where no
22 building remedy order or HBWC remedy order is made.
23 (5) In determining costs to be paid the Building Commissioner or
24 State Administrative Tribunal may take into account any refusal
25 or failure by a party to comply with an order or direction of the
26 Building Commissioner or Tribunal.
27 (6) When any costs or expenses are ordered to be paid under
28 subsection (3) --
29 (a) the amount ordered to be paid is recoverable by the
30 Building Commissioner in a court of competent
31 jurisdiction as a debt due to the State; and
32 (b) any amount paid or recovered must be credited to the
33 Building Services Account.
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s. 50
1 (7) This section does not limit the powers of the State
2 Administrative Tribunal under the State Administrative Tribunal
3 Act 2004 Part 4 Division 5.
4 50. Enforcement of order requiring payment of money
5 (1) A person to whom payment is to be made under an order made
6 under this Act may --
7 (a) if the order is made by the Building Commissioner --
8 enforce the order by filing in a court of competent
9 jurisdiction --
10 (i) a copy of the order that the Building
11 Commissioner has certified to be a true copy;
12 and
13 (ii) the person's affidavit as to the amount not paid
14 under the order;
15 or
16 (b) if the order is made by the State Administrative
17 Tribunal -- enforce the order under the State
18 Administrative Tribunal Act 2004 section 85.
19 (2) No charge is to be made for filing a copy of an order or an
20 affidavit under subsection (1)(a).
21 (3) On filing under subsection (1)(a), the order is taken to be an
22 order of the court, and may be enforced accordingly.
23 51. Failure to comply with order to do work: new order
24 (1) In this section --
25 responsible adjudicator, in relation to an order, means --
26 (a) if the order was made by the Building Commissioner,
27 the Building Commissioner; and
28 (b) if the order was made by the State Administrative
29 Tribunal, the State Administrative Tribunal.
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s. 51
1 (2) If the responsible adjudicator is satisfied that a building remedy
2 order referred to in section 36(1)(a) to remedy a building service
3 has not been complied with, or has been complied with in part
4 only, by the person to whom it was given by the responsible
5 adjudicator, the responsible adjudicator may --
6 (a) revoke the order in relation to remedying the building
7 service or the part in question; and
8 (b) make a building remedy order referred to in
9 section 36(1)(b) or (c) in relation to that building
10 service.
11 (3) If the responsible adjudicator is satisfied that a HBWC remedy
12 order referred to in section 41(2)(a) to do any work has not been
13 complied with, or has been complied with in part only, by the
14 person to whom it was given by the responsible adjudicator, the
15 responsible adjudicator may --
16 (a) revoke the order in relation to the work or the part in
17 question; and
18 (b) make an order against the person for the payment of a
19 sum of money as compensation for the failure to
20 comply.
21 (4) An order under subsection (3)(b) is taken to be a HBWC
22 remedy order.
23 (5) Subsections (2) and (3) apply whether or not a person has been
24 convicted of an offence under section 53 or the State
25 Administrative Tribunal Act 2004 section 95 before the
26 revocation.
27 (6) Sections 37, 38, 42 and 43 apply to the making of an order
28 under this section.
29 (7) The revocation of an order under subsection (2) or (3) does not
30 affect --
31 (a) anything done under the order before the revocation; or
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s. 52
1 (b) a penalty that has or may be imposed under section 53,
2 or the State Administrative Tribunal Act 2004 section 95
3 in respect of the failure to comply; or
4 (c) any action that has or may be taken under the Building
5 Services (Registration) Act 2010 section 57 or 58 in
6 respect of the failure to comply.
7 52. Enforcement of order other than monetary order or order
8 to do work
9 (1) If, or to the extent that, an order of the Building Commissioner
10 is not an order requiring the payment of money or an order to
11 which section 51 applies, it may be enforced under this section.
12 (2) A person seeking to enforce an order under this section may file
13 in the Supreme Court --
14 (a) a copy of the order that the Building Commissioner has
15 certified to be a true copy; and
16 (b) the person's affidavit as to the failure to comply with the
17 order; and
18 (c) a certificate from the Building Commissioner stating
19 that the decision is appropriate for filing in the Supreme
20 Court.
21 (3) No charge is to be made for filing a copy of an order, an
22 affidavit or a certificate under this section.
23 (4) On filing, the decision is taken to be a decision of the Supreme
24 Court, and may be enforced accordingly.
25 (5) The enforcement of an order under this section does not
26 affect --
27 (a) anything done under the order before the enforcement;
28 or
29 (b) a penalty that has or may be imposed under section 53
30 or the State Administrative Tribunal Act 2004 section 95
31 in respect of the failure to comply; or
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Division 4 Procedure, costs and enforcement of orders
s. 53
1 (c) any action that has or may be taken under the Building
2 Services (Registration) Act 2010 section 57 or 58 in
3 respect of the failure to comply.
4 53. Failure to comply with order: offence
5 (1) A person must not without reasonable excuse fail to comply
6 with --
7 (a) an order of the Building Commissioner; or
8 (b) a building remedy order or HBWC remedy order of the
9 State Administrative Tribunal.
10 Penalty:
11 (a) for a first offence, a fine of $50 000;
12 (b) for a second offence, a fine of $75 000;
13 (c) for a third or subsequent offence, a fine of $100 000
14 and imprisonment for 12 months.
15 (2) Subsection (1) does not apply if, or to the extent that, the order
16 is an order referred to in section 50(1).
17 (3) Subsection (1) applies despite the State Administrative Tribunal
18 Act 2004 section 95.
19 54. Avoidance of concurrent proceedings
20 (1) If --
21 (a) a building service complaint is made; or
22 (b) a HBWC complaint is made claiming that there has been
23 a breach of a home building work contract,
24 the matter to which the complaint relates (whether as shown in
25 the complaint or as emerging in the course of the determination
26 of the complaint) is not, unless subsection (2) applies,
27 justiciable by a court that would otherwise have jurisdiction to
28 determine the matter.
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s. 55
1 (2) This subsection applies if --
2 (a) the matter was before the court at the time when the
3 complaint was made; or
4 (b) the Building Commissioner does not accept the
5 complaint; or
6 (c) the complaint is dismissed for want of jurisdiction or
7 without deciding the matter on its merits; or
8 (d) the complaint is withdrawn or not pursued; or
9 (e) the matter is ordered to be transferred to the court under
10 section 55(3); or
11 (f) as a result of judicial review, a determination of the
12 complaint is quashed or declared invalid on the ground
13 that there was not jurisdiction to deal with the complaint
14 under this Act.
15 55. Transfer of proceeding
16 (1) The Building Commissioner may, with the consent of the State
17 Administrative Tribunal and in accordance with the rules of the
18 Tribunal, transfer a matter that the Building Commissioner has
19 decided to deal with under section 37 or 42, or that is before the
20 Building Commissioner under section 51, to the Tribunal.
21 (2) If a matter that could be dealt with under this Act as a building
22 service complaint or a HBWC complaint is before a court, the
23 court may order that the matter be transferred to the Building
24 Commissioner to be dealt with as a building service complaint
25 or a HBWC complaint, as the case requires.
26 (3) If a matter that a court has jurisdiction to determine is the
27 subject of a building service complaint or a HBWC complaint
28 before the State Administrative Tribunal, the Tribunal may
29 order that the matter be transferred to that court in accordance
30 with the rules of the court.
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Building Services (Complaint Resolution and Administration) Bill 2010
Part 3 Orders
Division 5 Review
s. 56
1 56. Effect on other remedies
2 Except as provided in section 54, nothing in this Part affects a
3 right or remedy a person would have had this Part not been
4 enacted, but a court or tribunal may have regard to a building
5 remedy order or a HBWC remedy order in a proceeding in
6 which the complainant and respondent are parties.
7 Division 5 -- Review
8 57. Review by State Administrative Tribunal of orders given by
9 Building Commissioner
10 (1) A person aggrieved by --
11 (a) an interim order; or
12 (b) an order under section 33 to vary an interim order; or
13 (c) a building remedy order made by the Building
14 Commissioner; or
15 (d) a HBWC remedy order made by the Building
16 Commissioner; or
17 (e) an order made by the Building Commissioner under
18 section 49,
19 may apply to the State Administrative Tribunal for a review of
20 the order.
21 (2) If the State Administrative Tribunal gives leave, a person
22 aggrieved by a decision of the Building Commissioner to refuse
23 to accept a complaint may apply to the Tribunal for a review of
24 the decision.
25 58. State Administrative Tribunal internal review
26 (1) In this section each of the following terms has the meaning
27 given to it by the State Administrative Tribunal Act 2004
28 section 3(1) --
29 judicial member
30 legally qualified member
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Review Division 5
s. 58
1 President
2 senior member
3 (2) The State Administrative Tribunal constituted by --
4 (a) a judicial member or a senior member who is a legally
5 qualified member; and
6 (b) such other members, if any, as the President considers
7 appropriate,
8 may, upon an application of a party, review an order that was
9 made by the State Administrative Tribunal when constituted
10 without a judicial member in the exercise of jurisdiction given
11 under section 38 or 43.
12 (3) The State Administrative Tribunal constituted under
13 subsection (2) may --
14 (a) affirm the order that is reviewed; or
15 (b) vary the order that is reviewed; or
16 (c) set aside the order that is reviewed and substitute
17 another order.
18 (4) The order that is reviewed, as affirmed or varied under
19 subsection (3), or an order that is substituted for the order
20 reviewed --
21 (a) is to be regarded as, and given effect as, an order made
22 under section 38 or 43, as the case requires; and
23 (b) unless the Tribunal orders otherwise, is to be regarded as
24 having effect, or having had effect, from the time when
25 the order reviewed would have, or would have had,
26 effect.
27 (5) An application under subsection (2) for review of an order --
28 (a) cannot be made unless the State Administrative Tribunal
29 constituted by --
30 (i) a judicial member or a senior member who is a
31 legally qualified member; and
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Division 5 Review
s. 58
1 (ii) such other members, if any, as the President
2 considers appropriate,
3 gives leave; and
4 (b) cannot be made later than 30 days after the order is
5 made.
6 (6) Unless otherwise provided by the regulations, the State
7 Administrative Tribunal Act 2004 Part 3 Division 3
8 Subdivision 3 applies in relation to a review under this section.
9 (7) The regulations may modify the operation of the State
10 Administrative Tribunal Act 2004 in relation to a review under
11 this section.
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Building Services (Complaint Resolution and Administration) Bill 2010
Inspections and investigations Part 4
Preliminary Division 1
s. 59
1 Part 4 -- Inspections and investigations
2 Division 1 -- Preliminary
3 59. Terms used
4 In this Part --
5 compliance purposes has the meaning given in section 64(1);
6 entry warrant means an entry warrant issued under Division 5;
7 occupier, of a place, includes any person who appears to have
8 the control or management of the place;
9 place includes a vehicle;
10 public place means --
11 (a) a place that --
12 (i) the public is entitled to use; or
13 (ii) is open to members of the public; or
14 (iii) is used by the public,
15 whether or not on payment of money; or
16 (b) a place that the occupier allows members of the public
17 to enter, whether or not on payment of money;
18 relevant record means a record that --
19 (a) is required to be kept under a building service Act; or
20 (b) contains information that is or may be relevant to a
21 contravention of a building service Act; or
22 (c) relates to the carrying out of a regulated building
23 service.
24 Division 2 -- Authorised persons
25 60. Authorised persons
26 (1) The Building Commissioner may, by instrument in writing,
27 designate --
28 (a) a public service officer; or
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Division 2 Authorised persons
s. 61
1 (b) a person employed or engaged under the Public Sector
2 Management Act 1994 section 100 by the employing
3 authority of the Department,
4 as an authorised person for the purposes of this Act.
5 (2) A person may be designated to be an authorised person for a
6 fixed or indefinite period.
7 (3) The Building Commissioner may, by instrument in writing,
8 revoke a designation at any time.
9 (4) The Building Commissioner is an authorised person by force of
10 this subsection.
11 61. Identity cards
12 (1) The Building Commissioner must give each authorised person
13 an identity card.
14 (2) An identity card must --
15 (a) identify the person as an authorised person; and
16 (b) contain a recent photograph of the person.
17 (3) A person must, within 14 days of ceasing to be an authorised
18 person, return the person's identity card to the Building
19 Commissioner.
20 Penalty: a fine of $5 000.
21 (4) Subsection (3) does not apply if the person has a reasonable
22 excuse.
23 (5) An authorised person must carry his or her identity card at all
24 times when exercising powers or performing functions as an
25 authorised person.
26 62. Production or display of identity card
27 (1) An authorised person may exercise a power in relation to
28 someone only if --
29 (a) the authorised person first produces the authorised
30 person's identity card for the other person's inspection;
31 or
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Inspections Division 3
s. 63
1 (b) the authorised person has the identity card displayed so
2 it is clearly visible to the other person.
3 (2) However, if for any reason it is not practicable to comply with
4 subsection (1) before exercising the power, the authorised
5 person may exercise the power and then produce the identity
6 card for inspection by the person at the first reasonable
7 opportunity.
8 63. Limitation on powers of authorised person
9 (1) An authorised person must act --
10 (a) in accordance with the directions of the Building
11 Commissioner; and
12 (b) subject to any limitation on the powers of that person
13 referred to in subsection (2).
14 (2) The powers of an authorised person may be limited --
15 (a) under a regulation; or
16 (b) under a condition specified in the person's instrument of
17 designation as an authorised person; or
18 (c) by written notice given by the Building Commissioner
19 to the authorised person.
20 (3) The Building Commissioner may revoke or vary a condition of
21 designation referred to in subsection (2)(b) or a notice referred
22 to in subsection (2)(c).
23 Division 3 -- Inspections
24 64. Compliance inspections
25 (1) An authorised person may carry out an inspection under this
26 section for any or all of the following purposes (compliance
27 purposes) --
28 (a) monitoring whether a building service Act has been, or
29 is being, complied with;
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Division 3 Inspections
s. 65
1 (b) without limiting paragraph (a), monitoring whether --
2 (i) a registered building service provider or
3 approved owner-builder is complying with the
4 conditions, if any, of that person's registration or
5 approval under the Building Services
6 (Registration) Act 2010;
7 (ii) any other disciplinary matter may exist in
8 relation to a registered building service provider
9 or approved owner-builder;
10 (c) monitoring compliance with the provisions of this Act
11 about the building services levy;
12 (d) investigating a suspected contravention of a building
13 service Act;
14 (e) examining the records of a local government or other
15 permit authority relating to applications for and the grant
16 or issue of building and demolition licences under the
17 Local Government (Miscellaneous Provisions) Act 1960
18 and permits and building approval certificates under the
19 Building Act 2010;
20 (f) assisting in the determination of an application or other
21 matter before the Building Services Board.
22 (2) If the Building Services Board requests that the Building
23 Commissioner carry out an inspection for a purpose mentioned
24 in subsection (1)(f), the Building Commissioner must direct an
25 authorised person to carry out the inspection.
26 65. General inspections
27 (1) An authorised person may inspect any building or building
28 service that has been or is being carried out to ascertain any or
29 all of the following --
30 (a) how building services have been or are being carried
31 out;
32 (b) how building standards (as defined in the Building
33 Act 2010) have been or are being applied;
34 (c) whether a building service Act is operating effectively.
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s. 66
1 (2) A registered building service provider who has carried out a
2 building service may request the Building Commissioner to
3 inspect the building service.
4 (3) On request under subsection (2), the Building Commissioner
5 may direct an authorised person to inspect the building service.
6 (4) For the purposes of carrying out an inspection under this section
7 an authorised person may at any reasonable time --
8 (a) enter and remain on a place in or on which the
9 authorised person has reasonable cause to believe that a
10 building service is being, or has been, carried out; and
11 (b) inspect any building or building service in or on the
12 place.
13 (5) An authorised person is not entitled under subsection (4) to
14 enter a place that is not a public place unless --
15 (a) the occupier of the place consents; or
16 (b) the authorised person has reasonable cause to believe
17 that the place is not occupied and that a building service
18 is being carried out at the place.
19 Division 4 -- Powers in relation to inspections and
20 investigations
21 66. Entry powers
22 (1) For compliance purposes or for the purposes of an investigation
23 under section 9 or 19 an authorised person may at any
24 reasonable time enter and remain in or on the following
25 places --
26 (a) a place in or on which the authorised person has
27 reasonable cause to believe that a building service is
28 being, or has been, carried out;
29 (b) a place in or on which the authorised person has
30 reasonable cause to believe that there are relevant
31 records;
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Division 4 Powers in relation to inspections and investigations
s. 67
1 (c) a place in or on which a registered building service
2 provider carries on business;
3 (d) a place in or on which the authorised person has
4 reasonable cause to believe that a breach of a building
5 service Act has occurred, is occurring or is likely to
6 occur.
7 (2) The authorised person is not entitled under this section to enter a
8 place that is not a public place unless --
9 (a) the occupier of the place consents; or
10 (b) the authorised person has reasonable cause to believe
11 that the place is not occupied and that a building service
12 is being carried out at the place; or
13 (c) the authorised person has the authority of an entry
14 warrant.
15 67. Powers after entry for compliance purposes or investigation
16 (1) An authorised person who enters a place under section 66(1) or
17 under the authority of an entry warrant may, for compliance
18 purposes or the purposes of the investigation, do any of the
19 following --
20 (a) inspect the place and any thing at the place;
21 (b) search the place and any thing at the place;
22 (c) examine, measure, test, photograph or film the place and
23 any thing at the place;
24 (d) operate a computer or other thing at the place;
25 (e) take any thing, or a sample of or from any thing, at the
26 place for analysis or testing;
27 (f) make a copy of, take an extract from, or download or
28 print out, any record that the authorised person suspects
29 on reasonable grounds is a relevant record;
30 (g) seize any thing that is or may afford evidence of a
31 contravention of a building service Act;
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s. 68
1 (h) if a thing found in or on the place cannot be
2 conveniently removed, secure it against interference;
3 (i) seize a record that the authorised person suspects on
4 reasonable grounds is a relevant record and retain it for
5 as long as is necessary for the purposes of this Act;
6 (j) direct a person who is at the place to do any of the
7 following --
8 (i) state the person's full name, date of birth, the
9 address of where the person is living and the
10 address of where the person usually lives;
11 (ii) answer (orally or in writing) questions asked by
12 the authorised person;
13 (iii) produce relevant records in the person's custody
14 or under the person's control;
15 (iv) operate a computer or other thing at the place;
16 (v) provide access (free of charge) to photocopying
17 equipment at the place to enable the copying of
18 documents;
19 (vi) give the authorised person a translation, code,
20 password or other information necessary to gain
21 access to or interpret and understand a record;
22 (vii) give other assistance the authorised person
23 reasonably requires.
24 (2) If an authorised person takes any thing away from the place, the
25 authorised person must give the occupier of the place a receipt
26 for the thing.
27 68. Obtaining information and documents
28 (1) An authorised person, for compliance purposes or for the
29 purposes of an investigation under section 9 or 19, may do any
30 of the following --
31 (a) direct a person --
32 (i) to give such information as the authorised person
33 requires; or
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Division 4 Powers in relation to inspections and investigations
s. 69
1 (ii) to answer a question put to the person,
2 in relation to any matter the subject of the compliance
3 purposes or investigation;
4 (b) direct a person to produce a relevant record in the
5 person's custody or under the person's control;
6 (c) examine and make a copy of a relevant record produced
7 in response to a direction under paragraph (b).
8 (2) A direction under subsection (1)(a) --
9 (a) must specify the time at or within which the information
10 or answer is to be given; and
11 (b) may require that the information or answer --
12 (i) be given orally or in writing; or
13 (ii) be given at or delivered to a place specified in
14 the direction; or
15 (iii) in the case of written information or a written
16 answer, be delivered by means specified in the
17 direction; or
18 (iv) be verified by statutory declaration.
19 (3) A direction under subsection (1)(b) --
20 (a) must be in writing given to the person required to
21 produce the record; and
22 (b) must specify the time at or within which the record is to
23 be produced; and
24 (c) may require that the record be produced --
25 (i) at a place specified in the direction; and
26 (ii) by any means specified in the direction.
27 69. Use of force and assistance
28 (1) An authorised person may use assistance and force that is
29 reasonably necessary in the circumstances when exercising a
30 power under this Act.
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1 (2) However, if the use of reasonable force is likely to cause
2 significant damage to property, the authorised person is not
3 entitled to use force without the authority of the Building
4 Commissioner in the particular case.
5 (3) An authorised person may request a police officer or other
6 person to assist the authorised person in exercising powers
7 under this Act.
8 (4) While a person is assisting an authorised person at the request of
9 the authorised person and in accordance with this Act, the
10 person --
11 (a) has the same powers; and
12 (b) is subject to the same responsibilities; and
13 (c) has the same protection from liability,
14 as in like circumstances would be conferred or imposed on an
15 authorised officer under this Act.
16 (5) Nothing in this section derogates from the powers of a police
17 officer.
18 70. Obstruction
19 A person must not hinder or obstruct an authorised person, or a
20 person assisting an authorised person, exercising a power
21 conferred by this Act.
22 Penalty: a fine of $10 000.
23 71. Directions generally
24 (1) Except as otherwise stated in this Division, a direction under
25 this Division may be given orally or in writing.
26 (2) A person must not without reasonable excuse fail to comply
27 with a direction given to the person under this Division.
28 Penalty: a fine of $10 000.
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Building Services (Complaint Resolution and Administration) Bill 2010
Part 4 Inspections and investigations
Division 5 Entry warrants
s. 72
1 Division 5 -- Entry warrants
2 72. Warrant to enter place
3 (1) An authorised person may apply to a justice of the peace for an
4 entry warrant authorising the entry of a place for compliance
5 purposes or an investigation under section 9 or 19.
6 (2) An authorised person may apply for an entry warrant for a place
7 even if, under this Act, the authorised person may enter the
8 place without an entry warrant.
9 (3) The application must be made in accordance with the Criminal
10 Investigation Act 2006 section 13 and section 13(8) of that Act
11 applies in relation to the entry warrant.
12 (4) An application for a warrant must --
13 (a) describe with reasonable particularity the place to be
14 entered; and
15 (b) state that the authorised person has reasonable grounds
16 for believing that entry to the place is necessary for a
17 compliance purpose or an investigation under section 9
18 or 19; and
19 (c) state the purposes for which entry to the place is
20 required; and
21 (d) include any other information that is prescribed.
22 73. Issue of warrant
23 (1) A justice of the peace to whom an application is made under
24 section 72 may issue a warrant, if satisfied that there are
25 reasonable grounds for believing that entry and inspection of the
26 place are necessary for compliance purposes or an investigation
27 under section 9 or 19.
28 (2) An entry warrant must contain the following information --
29 (a) a reasonably particular description of the place to which
30 it relates;
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Entry warrants Division 5
s. 74
1 (b) a reasonably particular description of the purposes for
2 which entry to the place is required;
3 (c) the period, not exceeding 7 days, in which it may be
4 executed;
5 (d) the name of the justice of the peace who issued it;
6 (e) the date and time when it was issued.
7 74. Effect of entry warrant
8 (1) An entry warrant has effect according to its content and this
9 section.
10 (2) An entry warrant comes into force when it is issued by a justice
11 of the peace.
12 (3) An entry warrant authorises the authorised person executing the
13 warrant --
14 (a) to enter the place described in the warrant; and
15 (b) to exercise the powers referred to in section 67,
16 during the period stated in the warrant.
17 75. Execution of warrant
18 (1) A warrant may be executed by the authorised person to whom it
19 is issued or by any other authorised person.
20 (2) An authorised person executing a warrant must, at the
21 reasonable request of a person apparently in charge of the place,
22 produce the warrant.
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Part 5 Remedying dangerous and other situations
s. 76
1 Part 5 -- Remedying dangerous and other situations
2 76. Terms used
3 In this Part --
4 dangerous situation means a situation where there is an
5 imminent and high risk to people, property or the environment
6 from the carrying out of a building service;
7 remediation notice means a remediation notice issued under
8 section 80.
9 77. Dangerous situation, emergency remedial measures
10 (1) If an authorised person suspects on reasonable grounds --
11 (a) that a dangerous situation exists; and
12 (b) that immediate measures are needed in order to identify,
13 assess, reduce, eliminate or avert the risk to people,
14 property or the environment from the building services
15 involved in the situation,
16 the authorised person may take the necessary measures.
17 (2) For the purposes of subsection (1), an authorised person may do
18 any or all of the following --
19 (a) enter and take possession of a place;
20 (b) isolate the place under section 78;
21 (c) take any other action that is necessary and incidental.
22 (3) An authorised person's powers under this section are in addition
23 to the other powers of the authorised person under this Act and
24 may be exercised whether or not a remediation notice has been
25 given to any person.
26 (4) An authorised person must not exercise a power under this
27 section if a like power is already being exercised under another
28 written law.
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s. 78
1 78. Restricting access to dangerous situations
2 (1) In this section --
3 unauthorised person, in relation to a restricted access site,
4 means any person other than --
5 (a) an authorised person; or
6 (b) a person authorised by an authorised person.
7 (2) If an authorised person suspects on reasonable grounds that --
8 (a) immediate measures are needed under section 77 in
9 relation to a dangerous situation; and
10 (b) it is necessary to isolate a place for the purposes of
11 dealing with the dangerous situation or ensuring that
12 people, property or the environment will not be
13 endangered,
14 the authorised person may establish a restricted access site that
15 includes the place, and, if necessary, an area around it.
16 (3) In order to establish a restricted access site, an authorised person
17 must take reasonable measures to notify people of the existence
18 and boundaries of the site.
19 (4) The area of a restricted access site must not be greater than is
20 reasonably necessary for the purposes for which it is
21 established.
22 (5) The boundaries of a restricted access site may be altered at any
23 time.
24 (6) An authorised person must disestablish a restricted access site
25 when the purposes for which it was established cease to exist.
26 (7) While a restricted access site is established, an authorised
27 person may remain at the site and take reasonable measures to
28 do any or all of the following --
29 (a) to secure the site against, and to prevent, unauthorised
30 entry or disturbance;
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s. 79
1 (b) to remove an unauthorised person from the site;
2 (c) if there is a vehicle at the site, to prevent the vehicle
3 from being moved.
4 (8) An unauthorised person who, without reasonable excuse, enters
5 a restricted access site while it is established commits an
6 offence.
7 Penalty:
8 (a) for a first offence, a fine of $50 000;
9 (b) for a second offence, a fine of $75 000;
10 (c) for a third or subsequent offence, a fine of $100 000
11 and imprisonment for 12 months.
12 (9) An unauthorised person who, without reasonable excuse,
13 disturbs any thing at a restricted access site while the site is
14 established commits an offence.
15 Penalty:
16 (a) for a first offence, a fine of $50 000;
17 (b) for a second offence, a fine of $75 000;
18 (c) for a third or subsequent offence, a fine of $100 000
19 and imprisonment for 12 months.
20 79. Recovering costs
21 (1) If an authorised person takes measures under section 77 to deal
22 with a dangerous situation, the Building Commissioner may
23 recover the reasonable costs and expenses incurred in taking the
24 measures in a court of competent jurisdiction as a debt due.
25 (2) The costs are recoverable jointly or severally from --
26 (a) the person who, at the time the dangerous situation
27 occurred, was the owner of the place on which the
28 dangerous situation occurred; and
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s. 80
1 (b) the person who, at the time the dangerous situation
2 occurred, was in control of the carrying out of the
3 building service that gave rise to the dangerous
4 situation; and
5 (c) the person who caused the dangerous situation.
6 (3) The costs and expenses are not recoverable from a person who
7 proves that --
8 (a) the dangerous situation was due to the act or default of
9 another person; and
10 (b) the person took all reasonably practicable measures to
11 prevent the situation; and
12 (c) the situation was not attributable to an employee, agent
13 or subcontractor of the person.
14 (4) The recovery of costs and expenses incurred by an authorised
15 person as a result of a dangerous situation does not preclude the
16 recovery of costs and expenses incurred by another government
17 agency as a result of the situation.
18 (5) In a proceeding under this section, a document apparently
19 signed by the Building Commissioner specifying details of the
20 costs and expenses reasonably incurred as a result of a
21 dangerous situation is, in the absence of evidence to the
22 contrary, proof of the details specified.
23 80. Remediation notice
24 (1) An authorised person may give a person a remediation notice if
25 the authorised person suspects on reasonable grounds either or
26 both of the following matters --
27 (a) that the person is contravening, or is about to
28 contravene, the Building Act 2010 section 9 or 10 or the
29 Building Services (Registration) Act 2010 section 7;
30 (b) that there is or is about to be at a place, a dangerous
31 situation and that the person is carrying out the building
32 service giving rise to the situation.
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s. 80
1 (2) A remediation notice must --
2 (a) be in writing; and
3 (b) identify the person to whom it is given, whether by
4 name or a sufficient description; and
5 (c) state why the notice is given; and
6 (d) if a contravention of the Building Act 2010 section 9 or
7 10 or the Building Services (Registration) Act 2010
8 section 7 is suspected, specify the provision concerned
9 and the grounds for the suspicion; and
10 (e) specify the measure that the person must take; and
11 (f) if the measure relates to a place, specify the place; and
12 (g) specify a date that is at least 7 days after the date of the
13 notice on or before which the measures to remedy the
14 matter (other than measures referred to in
15 subsection (4)) are to be taken, unless the Building
16 Commissioner has given an approval under
17 section 81(1); and
18 (h) explain the effect of section 82; and
19 (i) inform the person to whom it is given that the person
20 has a right to apply under section 83 or 84 for a review
21 of the decision to give the notice.
22 (3) The measures specified in the remediation notice must be ones
23 that are reasonably necessary to remedy the matter suspicion of
24 which has given rise to the notice.
25 (4) Without limiting subsection (3), the measures may include
26 requiring the person to take either or both of the following
27 measures either immediately or before a specified time --
28 (a) to stop carrying out all building services or specified
29 building services at the place;
30 (b) to isolate the place or part of the place in accordance
31 with directions specified in the remediation notice,
32 for a specified period or until a specified event occurs.
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s. 81
1 (5) An authorised person must not exercise a power under this
2 section if a like power is already being exercised under another
3 written law.
4 (6) An authorised person may at any time cancel or amend a
5 remediation notice.
6 (7) A person who fails to comply with a remediation notice given to
7 the person commits an offence.
8 Penalty:
9 (a) for a first offence, a fine of $50 000;
10 (b) for a second offence, a fine of $75 000;
11 (c) for a third or subsequent offence, a fine of $100 000
12 and imprisonment for 12 months.
13 81. Building Commissioner may approve earlier or immediate
14 compliance with remediation notice
15 (1) If the Building Commissioner is of the opinion that the
16 measures specified in a remediation notice should be taken --
17 (a) on or before a date that is less than 7 days after the date
18 of the notice; or
19 (b) immediately,
20 in order to avert a dangerous situation, the Building
21 Commissioner may approve of the notice being issued or
22 amended so as to require the measure to be taken --
23 (c) on or before a date that is less than 7 days after the date
24 of the notice; or
25 (d) immediately.
26 (2) The Building Commissioner must give the person to whom a
27 remediation notice is given written reasons for any opinion
28 formed under subsection (1).
29 (3) If the Building Commissioner approves of a remediation notice
30 being issued or amended so as to require the measures to be
31 taken immediately, an authorised person may remain at any
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Part 5 Remedying dangerous and other situations
s. 82
1 place where the measures are to be taken until the person to
2 whom the notice is directed has been given the notice or
3 amended notice.
4 82. Contravention of remediation notice, action by authorised
5 person
6 (1) If a remediation notice has been given to a person and the
7 person has not complied with it, an authorised person may take
8 the measures specified in the notice.
9 (2) For the purposes of subsection (1) an authorised person may --
10 (a) enter and take possession of a place; and
11 (b) take any other action that is reasonably necessary and
12 incidental.
13 (3) An authorised person's powers under this section are in addition
14 to the other powers of the authorised person under this Act.
15 (4) The Building Commissioner may recover the reasonable costs
16 and expenses incurred in taking measures for the purposes of
17 subsection (1) in a court of competent jurisdiction as a debt due
18 from the person to whom the remediation notice was given.
19 (5) In a proceeding under subsection (4), a document apparently
20 signed by the Building Commissioner specifying details of the
21 reasonable costs and expenses incurred is, in the absence of
22 evidence to the contrary, proof of the details specified.
23 83. Review by Building Commissioner
24 (1) The Building Commissioner on his or her own initiative may
25 inquire into the circumstances relating to a remediation notice
26 and review the notice, and after doing so, may amend, suspend,
27 cancel or confirm it.
28 (2) A person who has been given a remediation notice may request
29 the Building Commissioner to review it.
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s. 84
1 (3) Such a request must be in writing and must be made before the
2 time for complying with the remediation notice expires or
3 before such later date as the Building Commissioner may allow.
4 (4) On receiving such a request the Building Commissioner may
5 suspend the remediation notice pending making a decision
6 under subsection (5).
7 (5) On receiving such a request the Building Commissioner must
8 inquire into the circumstances relating to the remediation notice
9 and review it, and after doing so, may amend, suspend, cancel
10 or confirm the remediation notice.
11 (6) If the Building Commissioner amends a remediation notice it
12 has effect accordingly.
13 (7) If the Building Commissioner reviews a remediation notice at
14 the request of a person, the Building Commissioner must give
15 the person written advice of the decision on the review and the
16 reasons for the decision.
17 84. Review by State Administrative Tribunal
18 A person aggrieved by a decision to give a remediation notice or
19 a decision of the Building Commissioner under section 83 may
20 apply to the State Administrative Tribunal for a review of the
21 decision.
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Building Services (Complaint Resolution and Administration) Bill 2010
Part 6 Administration
s. 85
1 Part 6 -- Administration
2 85. Building Commissioner
3 (1) The Minister is required, by notice published in the Gazette, to
4 designate a person who is an executive officer of the
5 Department as the Building Commissioner for the purposes of
6 this Act.
7 (2) In subsection (1) --
8 executive officer has the meaning given in the Public Sector
9 Management Act 1994 section 3(1).
10 86. Functions
11 The Building Commissioner has the following functions --
12 (a) to monitor developments relevant to the regulation of
13 building services in the State;
14 (b) to monitor and review the operation of the building
15 service Acts;
16 (c) to administer the Building Services Board and the
17 operation of registration and approval schemes under the
18 Building Services (Registration) Act 2010;
19 (d) to administer the collection of the building services levy
20 under Part 7 Division 2;
21 (e) to promote and conduct research and training into
22 building industry policy, building services and other
23 matters that relate to the functions of the Building
24 Commissioner;
25 (f) to advise the Minister on any matter to which a building
26 service Act relates;
27 (g) to provide information on the registration of registered
28 building service providers or the approval of approved
29 owner-builders;
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s. 87
1 (h) to provide, or facilitate the provision of, advice,
2 information, education and training in relation to --
3 (i) building standards and codes; and
4 (ii) consumer protection in relation to building
5 services;
6 (i) to audit the work and conduct of registered building
7 service providers;
8 (j) to deal with complaints under this Act;
9 (k) to review and identify the causes of complaints and to
10 suggest ways of removing or minimising those causes;
11 (l) to provide advice generally on any matter relating to
12 complaints, and in particular --
13 (i) advice to the public on the making of complaints;
14 (ii) advice to the public on other avenues available
15 for dealing with grievances about building
16 services, registered building service providers or
17 approved owner-builders;
18 (iii) advice about removing or minimising the causes
19 of complaints;
20 (m) to perform any other function conferred on the Building
21 Commissioner by this Act or another written law.
22 87. Powers
23 (1) The Building Commissioner has all the powers the Building
24 Commissioner needs to perform the functions of the Building
25 Commissioner under this Act or any other Act.
26 (2) The Building Commissioner may, for the purpose of performing
27 any of the Building Commissioner's functions under this Act or
28 any other Act, but subject to any limitation imposed by any
29 Act --
30 (a) carry out any investigation, survey, exploration,
31 feasibility study, evaluation or review; and
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Part 6 Administration
s. 88
1 (b) collaborate in, carry out or procure the carrying out of
2 research and publish information; and
3 (c) use information that the Building Commissioner derives
4 from the performance of the function.
5 (3) Subsection (2) does not limit subsection (1) or any of the
6 Building Commissioner's other powers.
7 88. Warning about unsatisfactory or dangerous services
8 (1) The Building Commissioner may publish (in any form) a
9 statement identifying or giving warnings or information about
10 any of the following --
11 (a) building services carried out in an unsatisfactory or
12 dangerous manner and persons who carry out or are
13 likely to carry out those services in that manner;
14 (b) unfair business practices in relation to the carrying out
15 of building services and persons who engage or are
16 likely to engage in these practices;
17 (c) any other matter which adversely affects or may
18 adversely affect the interests of consumers in connection
19 with the acquisition by them of building services.
20 (2) A statement under subsection (1) may identify particular
21 building services, business practices, registered building service
22 providers and other persons.
23 (3) The Building Commissioner must not make or issue a statement
24 under this section unless satisfied that it is in the public interest
25 to do so.
26 (4) No liability is incurred by a person for publishing in good
27 faith --
28 (a) a statement under this section; or
29 (b) a fair report or summary of such a statement.
30 (5) In subsection (4) --
31 liability includes liability for defamation.
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Administration Part 6
s. 89
1 89. Committees
2 (1) The Building Commissioner may appoint committees to assist
3 in the performance of the Building Commissioner's functions.
4 (2) The Building Commissioner may discharge, alter or reconstitute
5 any committee.
6 (3) A committee may, with the approval of the Building
7 Commissioner, invite a person to participate in a meeting of the
8 committee but the person cannot vote on any matter before the
9 committee.
10 (4) A committee must comply with any direction that the Building
11 Commissioner gives it.
12 (5) Subject to directions given by the Building Commissioner and
13 to the terms of any delegation under which the committee is
14 acting, a committee may determine its own procedures.
15 (6) A member of a committee is to be paid such remuneration and
16 allowances, if any, as the Minister, on the recommendation of
17 the Public Sector Commissioner determines.
18 90. Disclosure of material personal interest
19 (1) A member of a committee who has a material personal interest
20 in a matter being considered or about to be considered by the
21 committee must, as soon as possible after the relevant facts have
22 come to the member's knowledge, disclose the nature of the
23 interest at a meeting of the committee.
24 Penalty: a fine of $25 000.
25 (2) A disclosure under subsection (1) must be recorded in the
26 minutes of the meeting.
27 91. Delegation
28 (1) The Building Commissioner may delegate to a person or a
29 committee any power or duty of the Building Commissioner
30 under another provision of this Act or under any other Act.
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Part 6 Administration
s. 91
1 (2) The delegation must be in writing executed by the Building
2 Commissioner.
3 (3) A delegation to a committee, any member of which is not a
4 public service officer in the Department, can only be made if the
5 delegation has been approved by the Minister.
6 (4) If a person is not a public service officer in the Department, a
7 power or duty can only be delegated to the person under this
8 section if the person has been approved for the purposes of this
9 section by the Minister.
10 (5) An approval under subsection (4) may be given in respect of --
11 (a) a specified person or persons of a specified class; or
12 (b) the holder or holders for the time being of a specified
13 office or class of office.
14 (6) A person or committee to which a power or duty is delegated
15 under this section cannot delegate that power or duty.
16 (7) A person or committee exercising or performing a power or
17 duty that has been delegated to the person or committee under
18 this section is to be taken to do so in accordance with the terms
19 of the delegation unless the contrary is shown.
20 (8) Nothing in this section limits the ability of the Building
21 Commissioner to perform a function through an officer or agent.
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Building Services (Complaint Resolution and Administration) Bill 2010
Financial provisions Part 7
Building Services Account Division 1
s. 92
1 Part 7 -- Financial provisions
2 Division 1 -- Building Services Account
3 92. Building Services Account
4 (1) An agency special purpose account called the Building Services
5 Account is to be established under the Financial Management
6 Act 2006 section 16.
7 (2) The Building Services Account must be credited with the
8 following --
9 (a) any building services levy received or recovered;
10 (b) fees, costs and other moneys received or recovered
11 under this Act;
12 (c) other money received by, made available to, or payable
13 to, the Building Commissioner in the performance of
14 functions under this or any other Act;
15 (d) money required under section 39(5) or 44(5) to be
16 credited to the Account;
17 (e) other money required or authorised under this or any
18 other written law to be credited to the Building Services
19 Account;
20 (f) any amount appropriated by Parliament to, or otherwise
21 lawfully received for, the Building Services Account.
22 (3) Moneys held in the Building Services Account must be applied
23 for the following --
24 (a) to fund the costs and expenses incurred in the operation
25 and administration of the State Administrative Tribunal
26 in dealing with building service complaints and HBWC
27 complaints;
28 (b) in payment of any amount ordered under section 39(6)
29 or 44(6) to be paid from the Account.
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Part 7 Financial provisions
Division 2 Building services levy
s. 93
1 (4) The amount to be applied under subsection (3)(a) is to be --
2 (a) determined by the Treasurer after consultation with the
3 chief executive officer of the Department and the chief
4 executive officer of the department assisting in the
5 administration of the State Administrative Tribunal
6 Act 2004; and
7 (b) credited to an operating account of the department
8 assisting in the administration of the State
9 Administrative Tribunal Act 2004.
10 (5) Moneys held in the Building Services Account may be applied
11 for the following --
12 (a) in payment of the costs of the administration and
13 enforcement of the building service Acts;
14 (b) to fund the services and facilities provided under the
15 building service Acts;
16 (c) in payment of the costs and expenses incurred in the
17 performance of the functions of the Building
18 Commissioner under the building service Acts;
19 (d) in payment of the remuneration and allowances payable
20 to the members of the Building Services Board and
21 committees under the Building Services (Registration)
22 Act 2010 and this Act;
23 (e) in payment of the remuneration and allowances payable
24 to members of the Plumbers Licensing Board under the
25 Water Services Licensing Act 1995.
26 Division 2 -- Building services levy
27 93. Terms used
28 In this Division --
29 building approval certificate has the meaning given in the
30 Building Act 2010 section 3;
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Building Services (Complaint Resolution and Administration) Bill 2010
Financial provisions Part 7
Building services levy Division 2
s. 94
1 permit means --
2 (a) a building permit as defined in the Building Act 2010
3 section 3; or
4 (b) a demolition permit as defined in the Building Act 2010
5 section 3; or
6 (c) an occupancy permit as defined in the Building Act 2010
7 section 3; or
8 (d) a building licence issued under the Local Government
9 (Miscellaneous Provisions) Act 1960 section 374; or
10 (e) a demolition licence issued under the Local Government
11 (Miscellaneous Provisions) Act 1960 section 374A.
12 94. Building services levy may be prescribed
13 (1) The Governor may make regulations to provide for a levy,
14 which may be in the nature of a tax, to be payable in respect of
15 permits and building approval certificates.
16 (2) The regulations may --
17 (a) prescribe different amounts of levy payable in respect of
18 different classes of case; and
19 (b) provide for the amount of levy payable to be calculated
20 on such basis, and in accordance with such factors, as
21 are prescribed; and
22 (c) specify who is liable to pay the levy and when payment
23 becomes due (which may include a requirement for
24 payment on application for a permit or building approval
25 certificate); and
26 (d) deal with how and to whom the levy is to be paid; and
27 (e) impose requirements on permit authorities or other
28 prescribed persons to collect the levy and remit it to the
29 Building Commissioner, and deal with the consequences
30 of failure to collect or remit the levy; and
31 (f) authorise the payment to a permit authority or other
32 person prescribed under paragraph (e) of an amount for
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Part 7 Financial provisions
Division 2 Building services levy
s. 94
1 collecting and remitting the levy, and providing for the
2 determination of that amount; and
3 (g) deal with the refund of overpaid amounts of levy and
4 repayment of any levy paid in respect of a permit or
5 building approval certificate if the permit or certificate is
6 not granted; and
7 (h) deal with the consequences of failure to pay the levy,
8 which may include the imposition of an increase in the
9 amount of an outstanding liability and may include
10 interest; and
11 (i) deal with how any amount outstanding may be
12 recovered; and
13 (j) provide for penalties not exceeding $5 000 for a breach
14 of the regulations.
15 (3) The regulations may provide for the keeping of records, the
16 provision of information and any other matter to facilitate the
17 administration of the provisions for the building services levy.
18 (4) Nothing in this section is to be taken as limiting the operation of
19 the Interpretation Act 1984 section 43.
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Building Services (Complaint Resolution and Administration) Bill 2010
Codes and standards Part 8
s. 95
1 Part 8 -- Codes and standards
2 95. Terms used
3 In this Part --
4 Commissioner code means a code issued by the Building
5 Commissioner under section 96(1);
6 Commissioner standard means a standard issued by the
7 Building Commissioner under section 96(1).
8 96. Building Commissioner may develop and issue building
9 service codes and standards
10 (1) The Building Commissioner may --
11 (a) develop policy proposals relevant to Commissioner
12 codes and Commissioner standards; and
13 (b) prepare and issue codes in respect of the following --
14 (i) the carrying out of building services;
15 (ii) the conduct of registered building service
16 providers and approved owner-builders;
17 (iii) any other related matter;
18 and
19 (c) prepare and issue standards in relation to the technical
20 aspects of the construction or demolition of a building;
21 and
22 (d) participate on behalf of the State in the development of
23 national codes and standards in respect of the matters
24 referred to in paragraphs (b) and (c).
25 (2) The Interpretation Act 1984 Part II, sections 43 (other than
26 subsection (6)) and 44 and Part VIII apply to a Commissioner
27 code or Commissioner standard as if it were subsidiary
28 legislation.
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Part 8 Codes and standards
s. 97
1 (3) The Building Commissioner must ensure that any
2 Commissioner code --
3 (a) can be inspected by the public at the Building
4 Commissioner's office during business hours; and
5 (b) can be purchased by the public.
6 (4) The Building Commissioner may give advice as to any question
7 or issue of doubt or difficulty in relation to the interpretation of
8 a Commissioner code.
9 (5) A breach of a Commissioner code does not of itself constitute a
10 disciplinary matter under the Building Services (Registration)
11 Act 2010 but such a breach may be asserted in a disciplinary
12 complaint and may be taken into account in dealing with that
13 complaint.
14 (6) Except as provided in subsection (5), no civil or criminal
15 liability attaches to a person by reason only that the person has
16 committed a breach of a Commissioner code.
17 97. Codes and standards may refer to published documents
18 (1) A Commissioner code or Commissioner standard may adopt a
19 published document specified in the code or standard --
20 (a) as that document exists at a particular date; or
21 (b) as that document may from time to time be amended.
22 (2) The document may be adopted --
23 (a) wholly or in part; or
24 (b) as modified by the Commissioner code or
25 Commissioner standard.
26 (3) The adoption may be direct (by reference made in the
27 Commissioner code or Commissioner standard), or indirect (by
28 reference made in the document that is itself directly or
29 indirectly adopted).
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Codes and standards Part 8
s. 97
1 (4) If a document is adopted in a Commissioner code or
2 Commissioner standard --
3 (a) details of where the document may be inspected or
4 purchased must be specified in, or attached to, the code
5 or standard; and
6 (b) the Building Commissioner must ensure that the
7 following are available during business hours for public
8 inspection without charge --
9 (i) the adopted document;
10 (ii) if the document is adopted as it may from time to
11 time be amended, either the amendments to the
12 document or the document as amended.
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Building Services (Complaint Resolution and Administration) Bill 2010
Part 9 General provisions
s. 98
1 Part 9 -- General provisions
2 98. Incriminating information
3 (1) An individual is not excused from complying with a direction
4 under section 47, 67(1) or 68 on the ground that the answer to a
5 question or the production of a record or other thing might tend
6 to incriminate the individual or expose the individual to a
7 criminal penalty.
8 (2) If an individual complies with a requirement to answer a
9 question or produce a record or other thing under
10 section 47, 67(1) or 68 neither --
11 (a) an answer given by the individual that was given to
12 comply with the requirement; nor
13 (b) the fact that a record or other thing produced by the
14 individual to comply with the requirement was
15 produced,
16 is admissible in evidence in any criminal proceeding against the
17 individual other than proceeding for perjury or for an offence
18 against this Act arising out of the false or misleading nature of
19 the information given.
20 99. Legal professional privilege
21 Nothing in this Act prevents a person from refusing to answer a
22 question, provide information or produce a document or other
23 thing because the answer or information would relate to, or the
24 document or thing contains, information in respect of which the
25 person claims legal professional privilege.
26 100. Protection from liability
27 (1) An action in tort does not lie against a person for anything that
28 the person has done, in good faith, in the performance or
29 purported performance of a function under this Act.
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s. 101
1 (2) The protection given by subsection (1) applies even though the
2 thing done as described in that subsection may have been
3 capable of being done whether or not this Act had been enacted.
4 (3) Despite subsection (1), the State is not relieved of any liability
5 that it might have for another person having done anything as
6 described in that subsection.
7 (4) In this section, a reference to the doing of anything includes a
8 reference to an omission to do anything.
9 (5) A person who --
10 (a) performs a function under this Act in relation to a
11 complaint or investigation; or
12 (b) is otherwise concerned in proceedings in relation to the
13 complaint,
14 has, in respect of any such function or concern, the same
15 protection and immunity as a member or officer of the Supreme
16 Court, or a witness or party before the Supreme Court, would
17 have in respect of a function or concern of a like nature related
18 to the jurisdiction of the Supreme Court.
19 101. Exchange of information
20 (1) The Building Commissioner may disclose information to the
21 Building Services Board or the Commissioner referred to in the
22 Consumer Affairs Act 1971 section 15 if, in the opinion of the
23 Building Commissioner the information is, or is likely to be,
24 relevant to the functions of the Board or that Commissioner.
25 (2) The Building Commissioner may request the Building Services
26 Board or the Commissioner referred to in the Consumer Affairs
27 Act 1971 section 15 to disclose information to the Building
28 Commissioner if, in the opinion of the Building Commissioner,
29 the information is, or is likely to be, relevant to the functions of
30 the Building Commissioner.
31 (3) Without limiting other ways in which a disclosure may be made,
32 information may be disclosed under this section by adding the
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s. 102
1 information directly into a database that is accessible only to
2 persons to whom the information may be disclosed in
3 accordance with this section.
4 (4) Information may be disclosed under subsection (1), or in
5 compliance with a request under subsection (2), despite any
6 written law relating to secrecy or confidentiality.
7 (5) If information is disclosed in good faith under this section --
8 (a) no civil or criminal liability is incurred in respect of the
9 disclosure; and
10 (b) the disclosure is not to be regarded as a breach of any
11 duty of confidentiality or secrecy imposed by law; and
12 (c) the disclosure is not to be regarded as a breach of
13 professional ethics or standards or as unprofessional
14 conduct.
15 102. Protection for compliance with Act
16 (1) No civil or criminal liability attaches to a person for
17 compliance, or purported compliance, in good faith, with a
18 requirement of this Act.
19 (2) In particular, if a person produces a record or other information
20 as required under this Act, no civil liability attaches to the
21 person for producing the record or information, whether the
22 liability would arise under a contract or otherwise.
23 103. Confidentiality
24 A person who is or has been engaged in the performance of
25 functions under this Act must not, directly or indirectly, record,
26 disclose or make use of any information obtained in the
27 performance of those functions except --
28 (a) for the purpose of, or in connection with, performing
29 functions under this Act or another written law; or
30 (b) as required or allowed by this Act or another written
31 law; or
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s. 104
1 (c) with the written consent of the Minister or the person to
2 whom the information relates; or
3 (d) for the purpose of any proceeding before a court, the
4 State Administrative Tribunal or the Building Services
5 Board arising out of the administration of a building
6 service Act; or
7 (e) in prescribed circumstances.
8 Penalty: a fine of $25 000.
9 104. False or misleading information
10 (1) A person must not do any of the things set out in
11 subsection (2) --
12 (a) in relation to a complaint under this Act; or
13 (b) in relation to the compliance, or purported compliance,
14 with any direction under this or another written law to
15 give the Building Commissioner or an authorised person
16 information; or
17 (c) in relation to a conciliation proceeding under this Act.
18 Penalty: a fine of $25 000.
19 (2) The things to which subsection (1) applies are --
20 (a) making a statement that the person knows is false or
21 misleading in a material particular; or
22 (b) making a statement that is false or misleading in a
23 material particular, with reckless disregard as to whether
24 or not the statement is false or misleading in a material
25 particular; or
26 (c) providing, or causing to be provided, information that
27 the person knows is false or misleading in a material
28 particular; or
29 (d) providing, or causing to be provided, information that is
30 false or misleading in a material particular, with reckless
31 disregard as to whether information is false or
32 misleading in a material particular.
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s. 105
1 105. Offences by body corporate -- liability of officers
2 (1) In this section --
3 officer, of a body corporate, means a person who --
4 (a) is a director of the body corporate; or
5 (b) is concerned in its management.
6 (2) If a body corporate is charged with an offence under this Act,
7 every person who was an officer of the body corporate at the
8 time of the alleged offence may also be charged with the
9 offence.
10 (3) If a body corporate and an officer are charged as permitted by
11 subsection (2) and the body corporate is convicted of the
12 offence, the officer is to be taken to have also committed the
13 offence, subject to subsection (6).
14 (4) If a body corporate commits an offence under this Act, then,
15 although the body corporate is not charged with the offence,
16 every person who was an officer of the body corporate at the
17 time the offence was committed may be charged with the
18 offence.
19 (5) If an officer is charged as permitted by subsection (4) and it is
20 proved that the body corporate committed the offence, the
21 officer is to be taken to have also committed the offence, subject
22 to subsection (6).
23 (6) If under this section an officer is charged with an offence it is a
24 defence to prove --
25 (a) that the offence was committed without the officer's
26 consent or connivance; and
27 (b) that the officer took all the measures to prevent the
28 commission of the offence that the officer could
29 reasonably be expected to have taken having regard to
30 the officer's functions and to all the circumstances.
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General provisions Part 9
s. 106
1 106. Prosecutions
2 (1) A prosecution for an offence against this Act can only be
3 commenced by the Building Commissioner or a person
4 authorised to do so by the Building Commissioner.
5 (2) Subsection (1) does not limit the functions of the Director of
6 Public Prosecutions under the Director of Public Prosecutions
7 Act 1991 section 11.
8 (3) A prosecution for an offence against this Act may be
9 commenced within 3 years after the date on which the offence
10 was allegedly committed, but not later.
11 (4) All prosecutions for offences against this Act are to be heard by
12 a court of summary jurisdiction constituted by a magistrate.
13 107. Service of documents
14 (1) For the purposes of this Act a document may be served --
15 (a) on a registered building service provider --
16 (i) if the provider is a natural person -- by
17 delivering it to the provider personally; or
18 (ii) if the provider is a body corporate -- by leaving
19 it with a person apparently or of above the age of
20 16 years at the head office, a registered office or
21 a principal office of the body corporate; or
22 (iii) by sending it by post to the address of that
23 provider shown in the register referred to in the
24 Building Services (Registration) Act 2010
25 section 29;
26 or
27 (b) on any other natural person --
28 (i) by delivering it to the person personally; or
29 (ii) by sending it by post to the address for service
30 specified by the person for the service of
31 documents or, if no such address is specified, the
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s. 108
1 residential or business address of the person last
2 known to the person giving the document;
3 or
4 (c) on any other body corporate --
5 (i) by leaving it with a person apparently or of
6 above the age of 16 years at the head office, a
7 registered office or a principal office of the body
8 corporate; or
9 (ii) by sending it by post to the address for service
10 specified by the body corporate for the service of
11 documents or, if no such address is specified, the
12 head office, a registered office or a principal
13 office of the body corporate.
14 (2) If a document is properly addressed, prepaid and posted, the
15 document is, unless the contrary is proved, taken to have been
16 given to the person to whom it is addressed at the time at which
17 the letter would be delivered in the ordinary course of post.
18 (3) This section does not affect the operation of another written law
19 that provides for the service of documents.
20 108. Evidentiary matters
21 (1) In the absence of evidence to the contrary, proof is not required
22 in any proceeding for an offence against this Act --
23 (a) that the prosecutor is authorised to commence the
24 prosecution; or
25 (b) that a signature on a prosecution notice alleging the
26 offence is the signature of a person authorised to take
27 the proceeding.
28 (2) All courts, judges and persons acting judicially are to take
29 judicial notice of --
30 (a) the fact that a person is or was the Building
31 Commissioner or an authorised person; and
32 (b) the official signature of such a person.
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s. 109
1 (3) A document signed by the Building Commissioner and
2 purporting to be a record or copy of a decision or order of the
3 Building Commissioner is, in the absence of evidence to the
4 contrary, proof of the matters stated in it.
5 (4) This section is in addition to and does not affect the operation of
6 the Evidence Act 1906.
7 109. Regulations
8 (1) The Governor may make regulations prescribing all matters that
9 are --
10 (a) required or permitted by the Act to be prescribed; or
11 (b) necessary or convenient to be prescribed for carrying out
12 this Act.
13 (2) Without limiting subsection (1), regulations may be made for all
14 or any of the following purposes --
15 (a) regulating --
16 (i) who may make a complaint; and
17 (ii) procedures for dealing with a complaint; and
18 (iii) the practice and procedure of the Building
19 Commissioner;
20 (b) regulating the conduct of conciliation proceedings under
21 Part 2 Division 3;
22 (c) regulating the conduct of investigations and inspections
23 under this Act;
24 (d) making provision for and in relation to the imposition of
25 fees, costs and charges in connection with any matter
26 under this Act, including --
27 (i) for inspections carried out under this Act; and
28 (ii) in connection with the performance of the
29 functions of the Building Commissioner;
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1 (e) without limiting the Interpretation Act 1984 sections 43
2 and 45, providing for the following --
3 (i) the time at which, or the period for or during
4 which, fees, costs or charges are to be paid;
5 (ii) the structure of fees, costs or charges;
6 (iii) the basis on which fees, costs or charges are to
7 be calculated;
8 (iv) the persons liable for payment of fees, costs and
9 charges;
10 (v) interest on unpaid fees, costs and charges;
11 (vi) penalties for late payment or underpayment;
12 (vii) the recovery of unpaid fees, costs and charges;
13 (f) providing that information supplied to the Building
14 Commissioner or an authorised person may be required
15 to be verified by statutory declaration.
16 (3) The regulations may provide for the method of calculating a fee
17 or charge, including calculation according to the cost of
18 performing a function.
19 (4) Without limiting subsections (2)(d) and (e) and (3), the
20 regulations may --
21 (a) authorise the Building Commissioner to fix, and
22 determine the liability for, the costs and expenses of
23 dealing with and determining complaints; and
24 (b) make any incidental or supplementary provision that is
25 expedient for the purposes of paragraph (a).
26 (5) The application of subsection (4) extends to the cost and
27 expenses of dealing with complaints that are commenced but
28 discontinued or otherwise not brought to finality.
29 (6) The regulations may provide that contravention of a regulation
30 is an offence, and provide, for an offence against the
31 regulations, a penalty not exceeding $5 000.
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Building Services (Complaint Resolution and Administration) Bill 2010
General provisions Part 9
s. 110
1 110. Forms
2 Forms that are convenient for the purposes of this Act may be
3 prescribed or approved by the Building Commissioner.
4 111. Review of Act
5 (1) The Minister must carry out a review of the operation and
6 effectiveness of this Act as soon as practicable after --
7 (a) the fifth anniversary of its commencement; and
8 (b) the expiry of each 5 yearly interval after that
9 anniversary.
10 (2) The Minister must prepare a report based on the review and, as
11 soon as is practicable after the report is prepared, cause it to be
12 laid before each House of Parliament.
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Part 10 Consequential amendments and transitional provisions
Division 1 Home Building Contracts Act 1991 amended
s. 112
1 Part 10 -- Consequential amendments and
2 transitional provisions
3 Division 1 -- Home Building Contracts Act 1991 amended
4 112. Home Building Contracts Act 1991 amended
5 This Division amends the Home Building Contracts Act 1991.
6 113. Section 3 amended
7 (1) In section 3(1) delete the definition of Disputes Tribunal.
8 (2) In section 3(1) insert in alphabetical order:
9
10 Building Commissioner means the officer referred to
11 in the Building Services (Complaint Resolution and
12 Administration) Act 2010 section 85;
13
14 114. Section 8 amended
15 Delete section 8(3) and insert:
16
17 (3) Where --
18 (a) a statement is given to the owner by the builder
19 for the purposes of subsection (1)(b); and
20 (b) the owner considers that the variation is not one
21 to which subsection (1) applies,
22 the owner cannot make a complaint as provided in
23 section 17 unless the owner makes the complaint
24 within 10 working days after the statement was given
25 to the owner.
26
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Building Services (Complaint Resolution and Administration) Bill 2010
Consequential amendments and transitional provisions Part 10
Home Building Contracts Act 1991 amended Division 1
s. 115
1 115. Section 15 amended
2 (1) In section 15(4) delete "Disputes Tribunal may approve a form
3 of contract submitted to it for its" and insert:
4
5 State Administrative Tribunal may approve a form of
6 contract submitted to the Building Commissioner for
7 an
8
9 (2) In section 15(6) delete "under section 21" and insert:
10
11 as referred to in section 17
12
13 116. Section 16 deleted
14 Delete section 16.
15 117. Section 17 replaced
16 Delete section 17 and insert:
17
18 17. Complaint in respect of breach or entitlement to
19 compensation
20 If an owner or builder under a contract claims that --
21 (a) there has been a breach of --
22 (i) the contract, not being a breach in
23 respect of which a building remedy
24 order may be made under the Building
25 Services (Complaint Resolution and
26 Administration) Act 2010; or
27 (ii) a provision in Part 2;
28 or
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Part 10 Consequential amendments and transitional provisions
Division 1 Home Building Contracts Act 1991 amended
s. 118
1 (b) the owner or builder is entitled to compensation
2 under Schedule 1,
3 then, subject to the Building Services (Complaint
4 Resolution and Administration) Act 2010, the owner or
5 builder may make a complaint under section 5(2) of
6 that Act.
7
8 118. Section 18 deleted
9 Delete section 18.
10 119. Section 20 replaced
11 Delete section 20 and insert:
12
13 20. Adjustment of rights in certain cases
14 If a contract is terminated under section 4(5), 10(4) or
15 14(3) or Schedule 1, the owner or builder may make a
16 complaint under the Building Services (Complaint
17 Resolution and Administration) Act 2010 section 5(2)
18 claiming that the owner or builder is entitled to --
19 (a) the return or repayment of the whole or part of
20 any consideration, or the value of any
21 consideration, given by the owner under or in
22 relation to the contract; or
23 (b) payment to the builder in respect of --
24 (i) any materials supplied by the builder; or
25 (ii) any home building work or other
26 services performed by the builder; or
27 (iii) costs, including overhead expenses and
28 loss of profit, incurred by the builder,
29 under or in relation to the contract.
30
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Building Services (Complaint Resolution and Administration) Bill 2010
Consequential amendments and transitional provisions Part 10
Home Building Contracts Act 1991 amended Division 1
s. 120
1 120. Sections 21, 22, 23 and 24 deleted.
2 Delete sections 21, 22, 23 and 24.
3 121. Section 25D amended
4 In section 25D(1)(b) delete "remedy under section 12A of the
5 Builders' Registration Act 1939" and insert:
6
7 building remedy order under the Building
8 Services (Complaint Resolution and
9 Administration) Act 2010
10
11 122. Section 25G amended
12 In section 25G(1)(a) delete "remedy under section 12A of the
13 Builders' Registration Act 1939" and insert:
14
15 building remedy order under the Building
16 Services (Complaint Resolution and
17 Administration) Act 2010
18
19 123. Section 27 amended
20 In section 27(1) delete "21(3)(a) or 26(2), a" and insert:
21
22 or 26(2) or by an order referred to in the Building
23 Services (Complaint Resolution and Administration)
24 Act 2010 section 41(3)(a), a
25
26 124. Section 31 replaced
27 Delete section 31 and insert:
28
29 31. Prosecutions
30 (1) A prosecution for an offence against this Act can only
31 be commenced by the Building Commissioner or a
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Part 10 Consequential amendments and transitional provisions
Division 1 Home Building Contracts Act 1991 amended
s. 125
1 person authorised to do so by the Building
2 Commissioner.
3 (2) Subsection (1) does not limit the functions of the
4 Director of Public Prosecutions under the Director of
5 Public Prosecutions Act 1991 section 11.
6 (3) A prosecution for an offence against this Act may be
7 commenced within 3 years after the date on which the
8 offence was allegedly committed, but not later.
9 (4) All prosecutions for offences against this Act are to be
10 heard by a court of summary jurisdiction constituted by
11 a magistrate.
12 (5) In the absence of evidence to the contrary, proof is not
13 required in any proceeding for an offence against this
14 Act --
15 (a) of the authority of a person to take the
16 proceeding; or
17 (b) that a signature on a prosecution notice alleging
18 the offence is the signature of a person
19 authorised to take the proceeding.
20
21 125. Section 31A deleted
22 Delete section 31A.
23 126. Schedule 1 amended
24 (1) Delete Schedule 1 clause 5(1) and insert:
25
26 (1) If the owner considers that the amount of a price increase
27 notified under clause 4(a) is excessive or unjustified, the
28 owner may make a complaint under the Building Services
29 (Complaint Resolution and Administration) Act 2010
30 section 5(2).
31
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Consequential amendments and transitional provisions Part 10
Other amendments and repeal Division 2
s. 127
1 (2) In Schedule 1 clause 5(2) delete "review under this clause" and
2 insert:
3
4 complaint referred to in subclause (1)
5
6 (3) Delete Schedule 1 clause 5(3).
7 Division 2 -- Other amendments and repeal
8 Subdivision 1 -- Acts amended
9 127. Constitution Acts Amendment Act 1899 amended
10 (1) This section amends the Constitution Acts Amendment Act 1899.
11 (2) In Schedule V Part 3 delete the item relating to the Building
12 Disputes Tribunal.
13 128. Construction Contracts Act 2004 amended
14 (1) This section amends the Construction Contracts Act 2004.
15 (2) In section 3 delete the definition of Registrar.
16 (3) In section 3 insert in alphabetical order:
17
18 Building Commissioner means the officer referred to
19 in the Building Services (Complaint Resolution and
20 Administration) Act 2010 section 85;
21
22 (4) In section 3 in the definition of registered adjudicator delete
23 "section 48;" and insert:
24
25 section 48.
26
27 (5) Delete section 47.
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Building Services (Complaint Resolution and Administration) Bill 2010
Part 10 Consequential amendments and transitional provisions
Division 2 Other amendments and repeal
s. 129
1 (6) In the provisions listed in the Table delete "Registrar" (each
2 occurrence) and insert:
3
4 Building Commissioner
5
6 Table
s. 28(1)(d) s. 28(2)
s. 28(3) s. 36(e) and (g)
s. 43(3) s. 48(2)
s. 48(4) s. 48(5)
s. 48(6) s. 48(7)
s. 49 s. 50(1)
s. 50(2) s. 51(1)
s. 51(2) s. 52
s. 54(1) s. 54(5)
7 129. Magistrates Court (Civil Proceedings) Act 2004 amended
8 (1) This section amends the Magistrates Court (Civil Proceedings)
9 Act 2004.
10 (2) Delete section 6(5)(e) and insert:
11
12 (e) a claim that the Building Commissioner or the
13 State Administrative Tribunal has jurisdiction
14 to deal with under the Building Services
15 (Complaint Resolution and Administration)
16 Act 2010.
17
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Building Services (Complaint Resolution and Administration) Bill 2010
Consequential amendments and transitional provisions Part 10
Other amendments and repeal Division 2
s. 130
1 130. Water Services Licensing Act 1995 amended
2 (1) This section amends the Water Services Licensing Act 1995.
3 (2) In section 59H(1) --
4 (a) in paragraph (a) delete "department" and insert:
5
6 department of the Public Service principally
7 assisting the Minister in the administration of
8 this Part
9
10 (b) in paragraph (b) delete "the department" and insert:
11
12 that department
13
14 (3) In section 59J delete "Regulations" and insert:
15
16 (1) Regulations
17
18 (4) At the end of section 59J insert:
19
20 (2) The Building Services Account is to be credited with
21 fees paid or recovered under regulations referred to in
22 subsection (1).
23 (3) In subsection (2) --
24 Building Services Account means the account referred
25 to in the Building Services (Complaint Resolution and
26 Administration) Act 2010 section 92(1).
27
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Part 10 Consequential amendments and transitional provisions
Division 3 Transitional and savings provisions
s. 131
1 Subdivision 2 -- Regulations repealed
2 131. Building Disputes Committee Regulations 1992 repealed
3 The Building Disputes Committee Regulations 1992 are
4 repealed.
5 Division 3 -- Transitional and savings provisions
6 132. Terms used
7 In this Division --
8 commencement day means the day on which the Building
9 Services (Registration) Act 2010 section 107 comes into
10 operation;
11 former Tribunal means the Building Disputes Tribunal
12 constituted under the repealed Act;
13 repealed Act means the Builders' Registration Act 1939
14 repealed by the Building Services (Registration) Act 2010
15 section 107.
16 133. Transfer of jurisdiction
17 (1) On commencement day, except as provided in section 134 --
18 (a) any matter involved in the performance of a function of
19 the former Tribunal is to be transferred to, and dealt
20 with by, the Building Commissioner; and
21 (b) any complaint, application or other thing made,
22 addressed or otherwise directed or given to the former
23 Tribunal to do with the performance of a function of the
24 former Tribunal becomes of the same effect as if it had
25 been given to the Building Commissioner to be dealt
26 with under this Act.
27 (2) On commencement day all records relating to a matter that is
28 transferred under this section are to be sent to the Building
29 Commissioner.
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Building Services (Complaint Resolution and Administration) Bill 2010
Consequential amendments and transitional provisions Part 10
Transitional and savings provisions Division 3
s. 134
1 134. Current proceedings continued
2 (1) In this section --
3 current proceeding means --
4 (a) a proceeding in respect of which a hearing has
5 commenced before the former Tribunal, but which has
6 not been concluded before the former Tribunal; or
7 (b) a proceeding in respect of which an order is made under
8 subsection (2);
9 proceeding means --
10 (a) a proceeding to deal with a complaint under section 12A
11 of the repealed Act; or
12 (b) a proceeding to deal with an application under the Home
13 Building Contracts Act 1991,
14 but does not include a proceeding of an interlocutory or
15 procedural nature.
16 (2) The State Administrative Tribunal constituted by the President
17 of the Tribunal sitting alone may, on its own initiative or on the
18 application of a party, order that a proceeding is a current
19 proceeding for the purposes of this section.
20 (3) A current proceeding is to be dealt with and determined in
21 accordance with the relevant provisions of the repealed Act and
22 the Home Building Contracts Act 1991 as in force immediately
23 before commencement day.
24 (4) For the purposes of dealing with a current proceeding the
25 former Tribunal is to continue as constituted under the repealed
26 Act immediately before commencement day.
27 135. Decisions and actions of former Tribunal
28 (1) Any decision of the former Tribunal, whether made before
29 commencement day or in accordance with section 134 --
30 (a) that would have been reviewable by the State
31 Administrative Tribunal had the law in force
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Part 10 Consequential amendments and transitional provisions
Division 3 Transitional and savings provisions
s. 136
1 immediately before commencement day continued to
2 apply; or
3 (b) in respect of which an application for review had been
4 made to the State Administrative Tribunal but not
5 determined,
6 is to continue to be dealt with as if the repealed Act as in force
7 before commencement day and the Home Building Contracts
8 Act 1991 as in force immediately before the coming into
9 operation of Division 1 had continued to apply.
10 (2) On and from commencement day anything ordered, decided or
11 otherwise done by the former Tribunal in the performance of a
12 function of the former Tribunal, whether before commencement
13 day or in accordance with section 134, remains or is of the same
14 effect as if, and is enforceable as if, the repealed Act as in force
15 before commencement day and the Home Building Contracts
16 Act 1991 as in force immediately before the coming into
17 operation of Division 1 had continued to apply.
18 136. Construction of written laws and other instruments
19 If in a written law, agreement or other instrument, there is a
20 reference to a remedy under section 12A of the repealed Act,
21 that reference is to have effect on and after commencement day
22 as if a reference to a building remedy order were substituted,
23 unless in the context it would be inappropriate to make the
24 substitution.
25 137. Construction Contracts Act 2004 amendments: transitional
26 provisions
27 (1) Anything commenced to be done by the Registrar under the
28 Construction Contracts Act 2004 before the coming into
29 operation of section 128 may be continued by the Building
30 Commissioner.
31 (2) Any act, matter or thing done or omitted to be done under the
32 Construction Contracts Act 2004 before the coming into
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Building Services (Complaint Resolution and Administration) Bill 2010
Consequential amendments and transitional provisions Part 10
Transitional and savings provisions Division 3
s. 138
1 operation of section 128 by, to or in respect of the Registrar
2 under that Act, to the extent that the act, matter or thing has any
3 force or significance, has the same effect after the coming into
4 operation of that section as if it had been done or omitted by, to
5 or in respect of the Building Commissioner.
6 138. Regulations for transitional matters
7 (1) If there is no sufficient provision in this Division for dealing
8 with a transitional matter, regulations under this Act may
9 prescribe all matters that are required or necessary or convenient
10 to be prescribed in relation to that matter.
11 (2) In subsection (1) --
12 transitional matter means a matter that needs to be dealt with
13 for the transition required because of this Act.
14 (3) Regulations made under subsection (1) may provide that
15 specific provisions of any written law --
16 (a) do not apply to or in relation to any matter; or
17 (b) apply with specific modifications to or in relation to any
18 matter.
19 (4) If regulations made under subsection (1) provide that a specified
20 state of affairs is to be taken to have existed, or not to have
21 existed, on and from a day that is earlier than the day on which
22 the regulations are published in the Gazette but not earlier than
23 the day on which this section comes into operation, the
24 regulations have effect according to their terms.
25 (5) In subsection (4) --
26 specified means specified or described in the regulations.
27 (6) If regulations contain a provision referred to in subsection (4),
28 the provision does not operate so as --
29 (a) to affect, in a manner prejudicial to any person (other
30 than the State or an authority of the State), the rights of
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Building Services (Complaint Resolution and Administration) Bill 2010
Part 10 Consequential amendments and transitional provisions
Division 3 Transitional and savings provisions
s. 138
1 that person existing before the regulations were
2 published in the Gazette; or
3 (b) to impose liabilities on any person (other than the State
4 or an authority of the State) in respect of anything done
5 or omitted to be done before the regulations were
6 published in the Gazette.
page 98
Building Services (Complaint Resolution and Administration) Bill 2010
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
approved owner-builder ........................................................................................3
authorised person ..................................................................................................3
builder ...................................................................................................................3
building .................................................................................................................3
building approval certificate ...............................................................................93
Building Commissioner ........................................................................................3
building remedy order...........................................................................................3
building service.....................................................................................................3
building service Act ..............................................................................................3
building service complaint ....................................................................................3
Building Services Account ...................................................................................3
Building Services Board .......................................................................................3
building services levy ...........................................................................................3
commencement day ..........................................................................................132
Commissioner code.............................................................................................95
Commissioner standard.......................................................................................95
committee .............................................................................................................3
complaint ..............................................................................................................3
compliance purposes................................................................................ 59, 64(1)
conciliator ..................................................................................................... 23(1)
current proceeding ....................................................................................... 134(1)
dangerous situation .............................................................................................76
Department............................................................................................................3
disciplinary complaint...........................................................................................3
disciplinary matter ................................................................................................3
entry warrant .......................................................................................................59
executive officer ............................................................................................ 85(2)
former Tribunal.................................................................................................132
HBWC complaint .................................................................................................3
HBWC remedy order ............................................................................................3
home building work ..............................................................................................3
home building work contract ................................................................................3
interim building service order ...............................................................................3
interim disciplinary order......................................................................................3
interim order .........................................................................................................3
judicial member ............................................................................................. 58(1)
legally qualified member ............................................................................... 58(1)
liability........................................................................................................... 88(5)
occupier...............................................................................................................59
page 99
Building Services (Complaint Resolution and Administration) Bill 2010
Defined Terms
officer................................................................................................ 48(1), 105(1)
owner ....................................................................................................................3
permit..................................................................................................................93
permit authority.....................................................................................................3
place................................................................................................................3, 59
plumbing work......................................................................................................3
prescribed..............................................................................................................3
President ........................................................................................................ 58(1)
proceeding.................................................................................................... 134(1)
public place .........................................................................................................59
record ....................................................................................................................3
registered building service provider......................................................................3
regulated building service .....................................................................................3
relevant record ....................................................................................................59
remediation notice...............................................................................................76
repealed Act ......................................................................................................132
respondent.............................................................................................................3
responsible adjudicator .............................................................39(1), 44(1), 51(1)
senior member................................................................................................ 58(1)
specified ............................................................................................ 41(1), 138(5)
transitional matter ........................................................................................ 138(2)
unauthorised person ....................................................................................... 78(1)
vocational regulatory body ...................................................................................3
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