2005
2005
2007-02-02
act
government
publicgeneral
act.reprint
act-2006-123
partuncommenced
2005-05-25
2005-05-25
1
2005
none
act-2005-115
53dbc1b4-224a-4321-8695-ba7147d8c934
63db4efe-d9d1-4919-9d0b-a8c0874fa3f2
Does not include amendments
by:
Sch 3.1 to this Act (not commenced — to
commence on 1.3.2007)
An Act to establish the Building Professionals
Board; to provide for the accreditation of certifiers for the purposes of the
Environmental Planning and Assessment Act
1979; to provide for the regulation of accredited
certifiers, the making of complaints against accredited certifiers and the
investigation of certifying authorities; to amend the Environmental Planning and Assessment Act
1979 and other Acts consequentially; and for other
purposes.
Part 1Preliminary
1Name of
Act
This Act is the Building
Professionals Act 2005.
2Commencement
(1)
This Act commences on a day or days to be
appointed by proclamation, except as provided by subsection
(2).
(2)
Schedule 3.1 and 3.5 commence on the commencement
of section 57 or the commencement of Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act
2002, whichever is the later.
(3)
Different days may be appointed for the
commencement of a single provision of Schedule 3 for the purpose of commencing
the repeals or amendments effected by the provision on different
days.
3Definitions
(1)
In this Act:
accreditation scheme means an
accreditation scheme in force for the time being under Division 1 of Part
2.
accredited certifier means the
holder of a certificate of accreditation.
authorised officer means a member of
staff of the Board who is authorised by the Board to carry out investigations
under Part 3 or 4.
Board means the Building
Professionals Board constituted under section 75.
certificate of accreditation means a
certificate of accreditation as an accredited certifier issued under this Act
and in force.
Director means the Director of the
Board.
equivalent authorisation means a
certificate, accreditation, registration or other authorisation or
qualification that is issued or conferred under the laws of another
jurisdiction and that enables the holder to undertake similar functions to the
holder of a certificate of accreditation.
exercise a function includes perform
a duty.
function includes a power, authority
or duty.
Register means the Register kept
under section 11.
Tribunal means the Administrative
Decisions Tribunal.
(2)
Notes included in this Act do not form part of
this Act.
(3)
Words and expressions used in this Act (but not
defined in this section) have the same meanings as they have in the Environmental Planning and Assessment Act
1979.
Part 2Accreditation of
certifiers
Division 1Accreditation
scheme
4Accreditation
scheme
(1)
The Board is to prepare an accreditation scheme
for the purposes of this Act.
(2)
An accreditation scheme may make provision for or
with respect to the following matters:
(a)
the qualifications, skills, knowledge and
experience required for accreditation under this Act,
(b)
a code of conduct for accredited
certifiers,
(c)
continuing professional development requirements
for accredited certifiers,
(d)
such other matters as may be prescribed by the
regulations.
(3)
An accreditation scheme has no effect unless it
is adopted by the Minister.
(4)
The procedure for the adoption of an
accreditation scheme is as follows:
(a)
the proposed scheme is to be prepared in draft
form by the Board and may be revised by the Minister,
(b)
the proposed scheme is to be publicly exhibited
for a period of at least 28 days,
(c)
the Minister is to seek public comment on the
proposed scheme during the period of public exhibition and public comment may
be made during that period,
(d)
the Minister is to have regard to any public
comment received during the period allowed for public comment and may adopt
the proposed scheme as exhibited or may revise the scheme before adopting
it,
(e)
the Minister is to adopt the scheme by publishing
it in the Gazette.
(5)
The Minister is to make the accreditation scheme
publicly available.
(6)
The Board:
(a)
is to keep the accreditation scheme under review,
and
(b)
is to have regard to any public submissions made
on the scheme from time to time, and
(c)
may make recommendations to the Minister for the
amendment or replacement of the scheme.
(7)
The Minister may amend or replace the
accreditation scheme.
(8)
A reference in this section to the accreditation
scheme includes a reference to an amendment of the scheme or the replacement
of the scheme.
(9)
However, the provisions of subsection (4)
(a)–(d) do not apply to an amendment of the accreditation scheme if the
Minister is of the opinion that the amendment:
(a)
is minor in nature or for the purpose of
correcting an error, or
(b)
is necessary to reflect a change of a course
(including a continuing professional development course) or qualification or
of the provider of a course or qualification.
(10)
Sections 40 and 41 of the Interpretation Act 1987 apply to an
accreditation scheme adopted by the Minister under this section in the same
way as they apply to statutory rules within the meaning of that
Act.
Editorial
note—
For orders relating to accreditation schemes see
Gazette No 24 of 2.2.2007, p 661.
Division 2Accreditation of accredited
certifiers
5Applications for
accreditation
(1)
A person (other than a body corporate) may apply
to the Board for a certificate of accreditation or the renewal of a
certificate of accreditation.
(2)
An application must:
(a)
be made in a form approved by the Board,
and
(b)
be accompanied by the application fee prescribed
by the regulations, and
(c)
be accompanied by such documents and information
as the Board requires to determine the application.
(3)
If the Board considers it necessary to do so in
order to determine the application, the Board may require any or all of the
following:
(a)
further documents or information to be provided
by the applicant,
(b)
that the applicant attend an interview, undertake
an oral or written examination or provide a demonstration of the
applicant’s skills.
6Determination of application
for accreditation
(1)
The Board may:
(a)
issue or renew a certificate of accreditation,
unconditionally or subject to conditions, or
(b)
refuse to issue or renew a certificate of
accreditation in accordance with section 7.
(2)
If the regulations provide that different
categories of certificate of accreditation may be issued by the Board, the
Board may:
(a)
in the case of an application for the issue of a
certificate of accreditation, issue a certificate of a category prescribed by
the regulations that the Board considers appropriate (regardless of whether
the applicant has applied for a different category of certificate),
or
(b)
in the case of an application for the renewal of
a certificate of accreditation, refuse to renew the certificate and instead
issue a certificate of a different category to that to which the application
for renewal relates if the Board considers it appropriate to do
so.
(3)
If the Board decides to issue or renew a
certificate of accreditation, it must issue a certificate to the applicant in
a form determined by the Board that sets out the conditions to which the
accreditation is subject.
(4)
The Board must give notice in writing to the
applicant concerned of its intention to make any of the following decisions
setting out the reasons for the decision:
(a)
to refuse an application for the renewal of a
certificate of accreditation,
(b)
to refuse to renew a certificate of accreditation
and instead to issue a certificate of a different category to that to which
the application for renewal related,
(c)
to impose new conditions on, or alter existing
conditions of, a certificate of accreditation (other than conditions
prescribed by the regulations).
(5)
The notice must include a statement that the
applicant concerned may make submissions to the Board in relation to the
proposed decision within 14 days after the date of the
notice.
(6)
The Board must take into account any submissions
received in accordance with subsection (5).
(7)
The Board must notify the applicant concerned in
writing of the making of a decision under this section setting out the reasons
for the decision.
(8)
The Board is taken to have refused to issue a
certificate of accreditation if it has failed to make a decision within the
period of 60 days after receiving the relevant application (or such longer
period as is agreed to in writing by the applicant).
7Grounds for refusal of
accreditation
(1)
The Board may refuse to issue or renew a
certificate of accreditation:
(a)
if the applicant does not comply with a
requirement under section 5 (3), or
(b)
if the Board is not satisfied that the applicant
has the qualifications, skills, knowledge and experience required by the
accreditation scheme for accreditation as an accredited certifier,
or
(c)
if the Board is not satisfied that the applicant
is covered by the insurance required by Division 2 of Part 6 or can obtain
such insurance, or
(d)
if the Board is not satisfied that the applicant
is a fit and proper person, or
(e)
if the applicant is a mentally incapacitated
person, or
(f)
if the applicant’s equivalent authorisation
has been suspended or cancelled (otherwise than at the applicant’s
request) under the law of another jurisdiction, or
(g)
if the applicant has contravened a law (whether
or not a New South Wales law, and whether or not the contravention is an
offence) that relates to the functions or obligations of a person as an
accredited certifier or the holder of an equivalent authorisation or involves
fraud or dishonesty, or
(h)
if the applicant has failed to comply with a
statutory or other duty, or a contractual obligation, imposed on the applicant
by or in accordance with a law (whether or not a New South Wales law) that
relates to the functions or obligations of a person as an accredited certifier
or the holder of an equivalent authorisation, or
(i)
if the applicant is an undischarged bankrupt,
or
(j)
if the applicant has represented himself or
herself as being an accredited certifier when the applicant was not an
accredited certifier, or
(k)
if the applicant has contravened any code of
conduct in the accreditation scheme, or
(l)
for such other reasons as may be prescribed by
the regulations.
(2)
In addition to the grounds referred to in
subsection (1), the Board may refuse to renew a certificate of accreditation
if:
(a)
the Board is not satisfied that the applicant has
undertaken the necessary continuing professional development required by the
accreditation scheme since the applicant was last issued with a certificate of
accreditation or renewal of a certificate of accreditation,
or
(b)
the applicant has not provided evidence, if
required by the Board, that demonstrates the applicant’s compliance with
any condition of the applicant’s current certificate of accreditation,
or
(c)
the application is not accompanied by any records
specified by the Board and required to be kept by the accredited certifier
under Division 1 of Part 6.
(3)
The Board must refuse to issue or renew a
certificate of accreditation if directed to do so by an order made by the
Tribunal under this Act.
8Suspension or cancellation of
accreditation
(1)
The Board may cancel a person’s certificate
of accreditation as an accredited certifier if:
(a)
the person dies, or
(b)
the person makes a written request to the Board
for the cancellation of that person’s certificate of accreditation,
or
(c)
the Board has made an error in issuing the
certificate.
(2)
The Board may suspend or cancel a person’s
certificate of accreditation as an accredited certifier if:
(a)
the person has been issued a certificate of
accreditation on the basis of a misrepresentation made by the person, whether
or not made knowingly, or
(b)
the Board is satisfied that the person is not
covered by the insurance required by Division 2 of Part 6,
or
(c)
the person is a mentally incapacitated person,
or
(d)
the person’s equivalent authorisation has
been suspended or cancelled (otherwise than at the person’s request)
under the law of another jurisdiction, or
(e)
the person is an undischarged bankrupt,
or
(f)
the person has failed to comply with an order of
the Board under section 31.
(3)
The Board must suspend or cancel a certificate of
accreditation if directed to do so by an order made by the Tribunal under this
Act.
(4)
The Board may suspend or cancel a certificate of
accreditation under subsection (2) (c)–(f) only after having given the
holder of the certificate written notice of its intention to suspend or cancel
the certificate setting out its reasons.
(5)
The notice must include a statement that the
holder of the certificate concerned may make submissions to the Board in
relation to the proposed suspension or cancellation within 14 days after the
date of the notice.
(6)
The Board must take into account any submissions
received in accordance with subsection (5).
(7)
The suspension or cancellation of a certificate
of accreditation:
(a)
must be made by notice in writing,
and
(b)
must be served on the holder of the certificate,
and
(c)
takes effect on the day on which the notice is
served or on a later day specified in the notice.
9Conditions of
accreditation
(1)
A certificate of accreditation is subject to any
conditions imposed by the Board under section 6 or this section and any
conditions prescribed by the regulations.
(2)
The Board may, at any time, vary any term of, or
condition imposed by the Board on, a certificate of accreditation or may
impose a new condition on a certificate of
accreditation.
(3)
The Board may vary a term or condition of a
certificate of accreditation or impose a new condition only after having given
the holder of the certificate of accreditation written notice of its intention
to vary or impose the term or condition setting out its
reasons.
(4)
The notice must include a statement that the
holder of the certificate of accreditation concerned may make submissions to
the Board in relation to the proposed variation or imposition of the term or
condition within 14 days after the date of the notice.
(5)
The Board must take into account any submissions
received in accordance with subsection (4).
(6)
Subsections (3)–(5) do not apply to the
variation or imposition of a term or condition at the request of the holder of
the certificate of accreditation concerned or following a decision of the
Board under section 31 or the Tribunal under section 34.
(7)
A variation of a term or condition of, or
imposition of a condition on, a certificate of accreditation:
(a)
must be made by notice in writing,
and
(b)
must be served on the holder of the certificate,
and
(c)
takes effect on the day on which the notice is
served or on a later day specified in the notice.
(8)
If the Board varies a term or condition of a
certificate of accreditation or imposes a new condition, it is, as soon as is
practicable, to issue the holder of the certificate with a replacement
certificate that takes account of the variation or imposition of the term or
condition.
(9)
Subsections (2)–(8) do not apply to a
condition that is prescribed by the regulations.
10Duration of
accreditation
(1)
A certificate of accreditation has effect for a
period of one year from the date on which it was issued or last renewed,
except during any period of suspension or unless sooner
cancelled.
(2)
Despite subsection (1), if an application for
renewal of a certificate of accreditation has been made in accordance with the
regulations but the application is not finally determined by the Board before
the expiry of the certificate of accreditation, the certificate of
accreditation (if not suspended or sooner cancelled) continues in force until
the application is finally determined.
11Register
(1)
The Board must cause a register to be kept in
relation to all accredited certifiers (the Register).
(2)
The Register must contain the following
particulars for each person who is, or has at any time been, an accredited
certifier:
(a)
the person’s name and the address of the
person’s place of business,
(b)
a telephone number or telephone numbers and,
where available, an e-mail address for contacting the person for business
purposes,
(c)
the category of certificate of accreditation that
is or was issued to the person,
(d)
the name of the accreditation body (if relevant)
by which the person was originally accredited,
(e)
the date on which the person was first issued
with a certificate of accreditation, and the date of each occasion on which
the person’s certificate of accreditation has been
renewed,
(f)
in a case where the person was accredited under
the Environmental Planning and Assessment Act
1979 before the commencement of this section, the periods
during which the person was accredited under that Act,
(g)
the name of the insurer with whom the person is
currently covered by insurance for the purposes of Division 2 of Part 6, the
identifying number of the insurance contract and the dates between which the
indemnity provided by the insurance contract has effect,
(h)
the terms of any conditions to which the
person’s accreditation is or has been subject, and the dates between
which any such condition has or has had effect,
(i)
in the case of a person whose certificate of
accreditation is or has been suspended, the dates between which the suspension
has or has had effect,
(j)
in the case of an accredited certifier whose
certificate of accreditation has been cancelled or has otherwise ceased to
have effect, the date on which the accreditation was cancelled or ceased to
have effect, as the case requires,
(k)
such other particulars as are prescribed by the
regulations.
(3)
Subsection (2) does not require the Board to
include information about persons previously accredited under the Environmental Planning and Assessment Act
1979 if the information is not available to the
Board.
(4)
The Board is to ensure that the Register is made
available to the public, free of charge, at the Board’s offices during
ordinary office hours and in any other manner that the Board
directs.
Division 3Powers of the Board for the
protection of the public
12Suspension of accreditation or
imposition of conditions to protect the public
(1)
The Board may take any of the following actions
if satisfied that the taking of the action is necessary to protect the safety
or property of any person:
(a)
by order suspend the certificate of accreditation
of an accredited certifier for such period (not exceeding 8 weeks) as is
specified in the order,
(b)
by order impose on a certificate of accreditation
such conditions as the Board considers appropriate.
(2)
The Board may take such action:
(a)
whether or not a complaint has been made to the
Board about the accredited certifier, and
(b)
whether or not proceedings in respect of such a
complaint are before the Board or the Tribunal, and
(c)
without first giving the accredited certifier
concerned an opportunity to make submissions.
(3)
If the Board suspends a certificate of
accreditation or imposes a condition on a certificate of accreditation under
this section:
(a)
the Board is to notify the holder of the
certificate of accreditation in writing, and
(b)
the suspension or condition takes effect on a
date specified in the notification, being a date occurring on or after service
of the notification on the holder.
13Power to remove or alter
conditions
The Board may at any time:
(a)
alter or remove conditions imposed by an order
under this Division, or
(b)
change the period for which an order under this
Division has effect (subject to section 15), or
(c)
revoke an order under this
Division.
14Matter to be treated as
complaint
If the Board takes action under section 12 in
relation to a matter that is not already the subject of a complaint, the Board
is to deal with the matter as a complaint and accordingly the provisions of
Part 3 apply as if the matter were a complaint.
15Extension of
suspension
A period of suspension imposed by the Board under
this Division may be extended, from time to time, by the Board by order for a
further period or further periods, each of not more than 8 weeks, but only
if:
(a)
the extension has been approved in writing by the
President or Deputy President of the Board, and
(b)
the complaint about the accredited certifier has
not been disposed of.
16Expiration of
suspension
On the expiration of a period of suspension
imposed under this Division, the person’s rights and privileges as an
accredited certifier are revived, subject to:
(a)
any order of the Board under this Division that
imposes a condition on the person’s certificate of accreditation,
or
(b)
any order of the Tribunal on the complaint that
is referred to the Tribunal.
17Duration of
conditions—complaint matters
(1)
If the Board imposes conditions on the
certificate of accreditation of an accredited certifier under this Division,
the conditions imposed by the Board have effect until the complaint about the
accredited certifier is disposed of, or the conditions are removed by the
Board, whichever happens first.
(2)
This section:
(a)
does not prevent conditions being imposed under
another provision of this Act, and
(b)
is subject to anything done by the Tribunal under
Part 3.
Division 4General
provisions
18Review of decisions of Board
under this Part
A person may apply to the Tribunal for a review
of any of the following decisions of the Board under this Part:
(a)
to refuse an application by the person for the
issue of a certificate of accreditation,
(b)
to refuse an application by the person for the
renewal of a certificate of accreditation,
(c)
to issue a certificate of accreditation to the
person of a different category to that for which the person
applied,
(d)
to refuse to renew the person’s certificate
of accreditation and instead to issue to the person a certificate of a
different category to that for which the person applied for
renewal,
(e)
to vary a term or condition of, or impose
conditions on, the person’s certificate of accreditation (other than
conditions prescribed by the regulations),
(f)
to suspend or cancel the person’s
certificate of accreditation.
Part 3Disciplinary
proceedings
Division 1Preliminary
19Definitions
In this Part:
complaint means a complaint about an
accredited certifier made under section 21.
disciplinary finding means a finding
of unsatisfactory professional conduct or professional
misconduct.
professional misconduct, in relation
to an accredited certifier, means conduct that is unsatisfactory professional
conduct of a sufficiently serious nature to justify suspension or cancellation
of the accredited certifier’s certificate of
accreditation.
unsatisfactory professional conduct
of an accredited certifier means any of the following (whether consisting of
an act or omission):
(a)
conduct occurring in connection with the exercise
of the accredited certifier’s functions as a certifying authority that
falls short of the standard of competence, diligence and integrity that a
member of the public is entitled to expect of a reasonably competent
accredited certifier,
(b)
a contravention of this Act or the Environmental Planning and Assessment Act
1979, or the regulations under either of those Acts, by
the accredited certifier, whether or not he or she is prosecuted or convicted
for the contravention,
(c)
a contravention by the accredited certifier of a
law (whether or not a New South Wales law, and whether or not the
contravention is an offence) that relates to the functions or obligations of a
person as an accredited certifier or the holder of an equivalent
authorisation, or involves fraud or dishonesty, whether or not he or she is
prosecuted or convicted for the contravention,
(d)
a failure to comply with a statutory or other
duty, or a contractual obligation, imposed on the accredited certifier by or
in accordance with a law (whether or not a New South Wales law) that relates
to the functions or obligations of a person as an accredited certifier or the
holder of an equivalent authorisation,
(e)
the exercise by the accredited certifier of his
or her functions as a certifying authority in a partial
manner,
(f)
the wilful disregard by the accredited certifier
of matters to which he or she is required to have regard in exercising his or
her functions as a certifying authority,
(g)
a failure by the accredited certifier to comply
with any relevant code of conduct contained in the accreditation
scheme,
(h)
a failure by the accredited certifier to comply
with a term or condition of the certificate of
accreditation,
(i)
a failure by an accredited certifier to comply
with an order of the Board or the Tribunal under this Act,
(j)
a failure by the accredited certifier, without
reasonable excuse, to comply with a direction or requirement under Part
5,
(k)
wilfully misleading or obstructing the Board in
the exercise of any function under this Part or Part 4 or
5,
(l)
any other improper or unethical conduct of the
accredited certifier that indicates that he or she is unfit to properly carry
out the duties of an accredited certifier,
(m)
any other conduct prescribed by the regulations
for the purposes of this definition.
20General provisions concerning
disciplinary proceedings
(1)
If an accredited certifier has died:
(a)
a person cannot make a complaint against the
accredited certifier, and
(b)
the Board is not to investigate (or continue to
investigate) a complaint made against the accredited certifier or to make an
application to the Tribunal for a disciplinary finding against the accredited
certifier, and
(c)
the Tribunal is not to determine an application
for a disciplinary finding against the accredited
certifier.
(2)
A complaint against an accredited certifier may
be made and dealt with even though the relevant certificate of accreditation
has been suspended or cancelled or has lapsed. For that purpose, a reference
in this Part to an accredited certifier includes a reference to a person whose
certificate of accreditation has been suspended or cancelled or has
lapsed.
(3)
Despite subsection (2), the Board may decide not
to investigate or make a decision under section 31 on a complaint (or may
decide to terminate an investigation or dismiss proceedings in relation to a
complaint) if the person who is the subject of the complaint is no longer an
accredited certifier.
(4)
Despite subsection (2), the Tribunal may decide
not to determine an application for a disciplinary finding against an
accredited certifier (or may decide to dismiss proceedings for such an
application) if the person to whom the application relates is no longer an
accredited certifier.
Division 2Making of complaints and
preliminary procedures
21Procedure for making
complaint
(1)
A person may make a complaint to the Board
against an accredited certifier in respect of the accredited certifier’s
professional conduct.
(2)
A complaint is:
(a)
to be in writing and in the form (if any)
approved by the Board, and
(b)
to contain particulars of the allegations on
which it is founded, and
(c)
to be verified by statutory
declaration.
(3)
The Board may require the complainant to provide
further particulars of the complaint.
(4)
The Board may decline to deal with a complaint if
further particulars are not provided as required under subsection
(3).
(5)
Unless the Board declines to deal with a
complaint against an accredited certifier under subsection (4), the Board
must, within 28 days after receiving the complaint:
(a)
inform the accredited certifier of the nature of
the complaint, and
(b)
by notice, invite the accredited certifier to
make, within such time (being at least 7 days) as the Board specifies in the
notice, such submissions in writing to the Board with respect to the complaint
as he or she thinks fit.
(6)
The Board may, if it considers it appropriate to
do so, give a copy of the complaint to the person against whom the complaint
is made.
22Initial assessment of
complaints by Board
(1)
After the period for making submissions on a
complaint under section 21 (5) (b) has expired, the Board is to assess whether
the complaint should be dismissed or investigated.
(2)
The Board in its assessment of a complaint is to
take into account any submissions received in accordance with section 21 (5)
(b).
(3)
If the Board is of the opinion that the complaint
should be investigated, the Board is to arrange for the investigation of the
complaint.
23Dismissal of
complaints
The Board may dismiss a complaint at any time
(including during the investigation of the complaint) for any of the following
reasons:
(a)
if further particulars of the complaint are not
given, or the complaint or the further particulars are not verified, as
required by the Board,
(b)
if the Board is of the opinion that the complaint
is trivial, vexatious, frivolous, misconceived or lacking in substance or has
not been made in good faith,
(c)
if the complaint has been dealt with previously
by the Board (or by an accreditation body under the Environmental Planning and Assessment Act
1979 as in force before the commencement of this section)
or another complaint has already been lodged in respect of the same
matter,
(d)
if the Board considers that there is or was a
satisfactory alternative means available to the complainant of resolving the
matter the subject of the complaint and the complainant does not have a
reasonable cause for not pursuing the alternative means,
(e)
if the Board is of the opinion that the complaint
deals with matters that do not constitute professional misconduct or
unsatisfactory professional conduct,
(f)
if the Board is of the opinion that the matter
could be appropriately dealt with by conciliation (regardless of whether the
parties agree to undertake conciliation) and the Board does not consider that
the complaint needs to be investigated,
(g)
if the complaint relates to a matter that
occurred more than 3 years before the making of the
complaint.
24Conciliation of
complaints
(1)
If the Board thinks it appropriate to do so, the
Board may recommend to a complainant and the accredited certifier the subject
of the complaint that they undertake conciliation of the complaint (whether or
not the complaint has been dismissed or is being
investigated).
(2)
The Board may arrange for one of its officers to
assist in conciliation of a complaint.
(3)
The Board is not prevented from investigating a
complaint because the parties to the complaint agree to undertake conciliation
of the complaint.
(4)
Evidence of anything said or of any admission
made during the conciliation process is not admissible in any proceedings
before a court, tribunal or body.
(5)
A document prepared for the purposes of, or in
the course of, the conciliation process (or a copy of such a document) is not
admissible in any proceedings before a court, tribunal or
body.
(6)
This section does not apply to evidence or a
document if the persons who attended, or were named during, the conciliation
process and, in the case of a document, all persons named in the document,
consent to admission of the evidence or document.
(7)
A person cannot be required (whether by subpoena
or any other procedure) to produce evidence or a document that is inadmissible
in evidence in proceedings before a court, tribunal or body because of this
section.
25Reference of complaint to
another person or body for investigation
(1)
The Board may, at any time while dealing with a
complaint, refer the complaint (or part of the complaint) to another person or
body if it appears that the complaint (or part) raises an issue that requires
investigation by the other person or body.
(2)
However, the Board may continue to deal with the
matter the subject of the complaint if it appears to the Board that the matter
raises an issue of professional misconduct or unsatisfactory professional
conduct of an accredited certifier.
26Withdrawal of
complaint
(1)
A complaint may be withdrawn at any time by the
complainant.
(2)
However, the Board may continue to deal with the
matter the subject of the complaint if it appears to the Board that the matter
raises an issue of professional misconduct or unsatisfactory professional
conduct of an accredited certifier.
Division 3Investigation of
complaints
27Investigation by Board of
complaints
(1)
The Board must, subject to this Part, conduct an
investigation into each complaint made to it under this
Part.
(2)
The Board may deal with one or more complaints
about an accredited certifier in an investigation.
(3)
If during an investigation of any one or more
complaints it appears to the Board that there is a matter in respect of which
another complaint could have been made against the accredited certifier
concerned or another accredited certifier, the Board may deal with the matter
in its investigation as if a complaint had been made about it under section
21.
(4)
If the Board decides to deal with a matter under
subsection (3) as if a complaint had been made about it under section 21, the
Board must give notice in writing to the accredited certifier concerned of the
nature of the matter being investigated and inform the accredited certifier
that the matter is being treated as a complaint.
(5)
For the purposes of subsection (3), the Board may
deal with a matter that could have been the subject of another
complaint:
(a)
whether that complaint could have been made
instead of or in addition to any complaint that was in fact made,
and
(b)
whether or not that complaint could have been
made by the same complainant.
28Investigation into complaint
to be conducted expeditiously
(1)
An investigation by the Board is to be conducted
as expeditiously as possible.
(2)
In particular, the Board is to give priority to
dealing with complaints that in its opinion may involve issues that pose a
threat to public safety.
(3)
However, the Board may defer investigation of a
complaint if the parties to the complaint have agreed to conciliate the
complaint and the Board thinks that it is appropriate to await the outcome of
conciliation.
Division 4Procedure after investigation
of complaint
29Report of investigation to be
given to accredited certifier
(1)
If an authorised officer is appointed by the
Board to investigate a complaint, the authorised officer is to submit a
written report to the Board on the results of the
investigation.
(2)
The report may contain a recommendation of the
authorised officer who prepared it that the Board give consideration to taking
certain action in respect of the accredited certifier
concerned.
(3)
On receiving the report, the Board is to give a
copy of it to the accredited certifier who is the subject of the complaint
with a notice that states that the accredited certifier may make written
submissions to the Board within 28 days after the date of the
notice.
(4)
The Board must take into account any submissions
received in accordance with subsection (3).
(5)
If the Board requires an authorised officer to
undertake further investigation of a complaint after the furnishing of a
report under this section, this section applies to that further
investigation.
Note—
An example of when section 29 (5) would operate
is if the Board adjourned a meeting at which a complaint was being considered
to enable further investigation of the complaint to be carried out. (See
section 30 (3) (b)).
30Conduct of meeting dealing
with complaint
(1)
The Board may, if it considers it appropriate to
do so, hold one or more meetings to consider a
complaint.
(2)
At any such meeting, the Board:
(a)
may inform itself on any matter in such manner as
it thinks fit, and
(b)
may receive written or oral submissions, as it
thinks fit, and
(c)
is to proceed with as little formality and
technicality, and as much expedition, as the requirements of this Act and the
proper consideration of the complaint permit, and
(d)
is not bound by rules of evidence,
and
(e)
may take evidence on oath,
and
(f)
may allow the accredited certifier concerned to
be present or be represented by a legal practitioner or other person or may
deal with the complaint in the absence of the accredited
certifier.
(3)
Such a meeting:
(a)
is to be held in the absence of the public,
and
(b)
may be adjourned for any reason by the Board,
including to enable further investigation to be carried out in relation to the
complaint concerned.
(4)
For the purposes of this section, a member of the
Board may administer an oath (or, if the meeting is being conducted by a
committee that is exercising delegated functions, by a member of the
committee).
31Decision after investigation
of complaint
(1)
After the Board has completed an investigation
into a complaint against an accredited certifier, the complaint is to be dealt
with in accordance with this section.
(2)
The Board may apply to the Tribunal for a
disciplinary finding against an accredited certifier under Division 5 if it is
satisfied that there is a reasonable likelihood that the accredited certifier
will be found guilty by the Tribunal of unsatisfactory professional conduct or
it may instead exercise the functions conferred on it by subsection
(4).
(3)
However, the Board must apply to the Tribunal for
a disciplinary finding against an accredited certifier under Division 5 if it
is satisfied that there is a reasonable likelihood that the accredited
certifier will be found guilty by the Tribunal of professional
misconduct.
(4)
If the Board is satisfied that the accredited
certifier is guilty of unsatisfactory professional conduct (but not
professional misconduct), the Board may take any one or more of the following
actions:
(a)
caution or reprimand the accredited
certifier,
(b)
by order impose such conditions on the accredited
certifier’s certificate of accreditation as it considers
appropriate,
(c)
order that the accredited certifier complete such
educational courses as are specified by the Board within the time specified by
the Board,
(d)
order that the accredited certifier report on his
or her practice as an accredited certifier at the times, in the manner and to
the persons specified by the Board,
(e)
order the accredited certifier to pay to the
Board a fine of an amount not exceeding 100 penalty units within the time
specified by the Board,
(f)
order that no further action is to be taken by
the Board in relation to the complaint if satisfied that the accredited
certifier is generally competent and diligent and that no other material
complaints (whether or not the subject of a disciplinary finding) have been
made against the accredited certifier.
(5)
The Board is to dismiss the complaint against the
accredited certifier if it is satisfied that the accredited certifier is not
guilty of either unsatisfactory professional conduct or professional
misconduct.
(6)
An order of the Board under this section takes
effect on a date specified in the written statement of the decision given
under section 32 or, if a statement is not required to be provided under that
section, on a date specified in a notice in writing served on the person the
subject of the complaint. Any such date must be a date occurring on or after
service of the statement or notice on the person the subject of the
complaint.
32Board to give statement of
decision
(1)
The Board is to provide a written statement of a
decision made under section 31 to the complainant and the accredited certifier
concerned, and must do so as soon as practicable after the decision is made
(bearing in mind the public welfare and seriousness of the
matter).
(2)
The statement of a decision must:
(a)
set out any findings on material questions of
fact, and
(b)
refer to any evidence or other material on which
the findings were based, and
(c)
give the reasons for the
decision.
(3)
The Board is not required to include confidential
information in any such statement. If a statement would be false or misleading
if it did not include the confidential information, the Board is not required
to provide the statement.
(4)
When confidential information is not included in
the statement of a decision provided to a person or the statement is not
provided to a person because of subsection (3), the Board must give a
confidential information notice to the person.
(5)
A confidential information notice is a
notice that indicates that confidential information is not included or that
the statement will not be provided (as appropriate) and gives the reasons for
this. The notice must be in writing and must be given within one month after
the decision is made.
(6)
This section does not affect the power of a court
to make an order for the discovery of documents or to require the giving of
evidence or the production of documents to a court.
(7)
In this section:
confidential information means
information that:
(a)
has not previously been published or made
available to the public when a written statement of a decision to which it is
or may be relevant is being prepared, and
(b)
relates to the personal or business affairs of a
person, other than a person to whom the Board is required (or would, but for
subsection (3), be required) to provide a written statement of a decision,
and
(c)
is information:
(i)
that was supplied in confidence,
or
(ii)
the publication of which would reveal a trade
secret, or
(iii)
that was provided in compliance with a duty
imposed by an enactment, or
(iv)
the provision of which by the Board would be in
breach of any enactment.
33Person may apply to Tribunal
for a review of disciplinary finding of Board
A person in respect of whom the Board has made a
disciplinary finding may apply to the Tribunal for a review of that finding
and any action taken by the Board under section 31 (4).
Division 5Role of Tribunal in complaints
process
34Tribunal may make certain
disciplinary findings
(1)
If an application is made to the Tribunal under
section 31 for a disciplinary finding in relation to an accredited certifier,
the Tribunal is to determine whether or not the accredited certifier is guilty
of unsatisfactory professional conduct or professional
misconduct.
(2)
If the Tribunal finds that the accredited
certifier is guilty of unsatisfactory professional conduct or professional
misconduct, the Tribunal may make any one or more of the following
decisions:
(a)
caution or reprimand the accredited
certifier,
(b)
direct that such conditions as it considers
appropriate be imposed on the accredited certifier’s certificate of
accreditation,
(c)
order that the accredited certifier complete such
educational courses as are specified by the Tribunal,
(d)
order that the accredited certifier report on his
or her practice as an accredited certifier at the times, in the manner and to
the persons specified by the Tribunal,
(e)
order the accredited certifier to pay to the
Board a fine of an amount, not exceeding 1,000 penalty units, specified in the
order,
(f)
order the accredited certifier to pay to the
complainant such amount (not exceeding $20,000) as the Tribunal considers
appropriate by way of compensation for any damage suffered by the complainant
as a result of the unsatisfactory professional conduct or professional
misconduct,
(g)
suspend the accredited certifier’s
certificate of accreditation for such period as the Tribunal thinks
fit,
(h)
cancel the accredited certifier’s
certificate of accreditation,
(i)
order that the accredited certifier cannot
re-apply for a certificate of accreditation within such period (including the
period of his or her lifetime) as may be specified by the
Tribunal.
(3)
If the Tribunal finds that the accredited
certifier is not guilty of unsatisfactory professional conduct or professional
misconduct, it is to dismiss the application.
(4)
The Tribunal may not make an order under
subsection (2) (f) without the consent of the complainant and the making of
any such order does not affect any right of the complainant to bring an action
to seek additional compensation.
35Tribunal may award
costs
The Tribunal may award costs under section 88 of
the Administrative Decisions Tribunal Act
1997 in respect of proceedings commenced by an application
made under this Part.
36Appeals to Appeal Panel
against decisions and orders of the Tribunal
An order or other decision made by the Tribunal
under this Division may be appealed to an Appeal Panel of the Tribunal under
Part 1 of Chapter 7 of the Administrative
Decisions Tribunal Act 1997 by a party to the proceedings
in which the order or decision is made.
37Confidential information in
statement of reasons
(1)
The Tribunal is not required to include
confidential information in the statement of reasons given under section 89 or
117 of the Administrative Decisions Tribunal Act
1997. If a statement would be false or misleading if it
did not include the confidential information, the Tribunal is not required to
provide the statement.
(2)
When confidential information is not included in
the statement of a decision provided to a person or the statement is not
provided to a person because of subsection (1), the Tribunal must give a
confidential information notice to the person.
(3)
A confidential information notice is a
notice that indicates that confidential information is not included or that
the statement will not be provided (as appropriate) and gives the reasons for
this. The notice must be in writing and must be given within one month after
the decision is made.
(4)
This section does not affect the power of a court
to make an order for the discovery of documents or to require the giving of
evidence or the production of documents to a court.
(5)
In this section:
confidential information means
information that:
(a)
has not previously been published or made
available to the public when a written statement of a decision to which it is
or may be relevant is being prepared, and
(b)
relates to the personal or business affairs of a
person, other than a person to whom the Tribunal is required (or would, but
for subsection (1), be required) to provide a written statement of a decision,
and
(c)
is information:
(i)
that was supplied in confidence,
or
(ii)
the publication of which would reveal a trade
secret, or
(iii)
that was provided in compliance with a duty
imposed by an enactment, or
(iv)
the provision of which by the Tribunal would be
in breach of any enactment.
Division 6Publicising disciplinary
action
38Definitions
In this Division:
accredited certifier includes a
former accredited certifier.
disciplinary action means any of the
following action:
(a)
any action taken by the Board under section 31
(4) or by the Tribunal under section 34 (2) in respect of an accredited
certifier,
(b)
the suspension of, or imposition of conditions
on, a certificate of accreditation under Division 3 of Part
2.
39Publicising disciplinary
action
(1)
The Board must publicise disciplinary action
taken against an accredited certifier (including the name and other
identifying particulars of the person against whom the disciplinary action was
taken).
(2)
The Board may publicise disciplinary action taken
against an accredited certifier in any manner the Board thinks
fit.
(3)
Without limiting subsection (2), it is sufficient
compliance with subsection (1) if the Board ensures that the information
referred to in subsection (1) is placed on the register of disciplinary action
required to be kept under this Division.
(4)
The requirement to publicise disciplinary action
applies only to disciplinary action taken after the commencement of this
section. However, the Board may publicise disciplinary action taken under the
Environmental Planning and Assessment Act
1979 before the commencement of this section in accordance
with this Division.
(5)
This section extends to disciplinary action taken
outside this State, to the extent that the particulars of that disciplinary
action are known to the Board.
40Register of disciplinary
action
(1)
The Board must keep a register of disciplinary
action taken against accredited certifiers.
(2)
The register is to include the following:
(a)
the name and other identifying particulars of the
person against whom the disciplinary action was taken,
(b)
particulars of the disciplinary action
taken.
(3)
The Board is to ensure that the register is made
available to the public, free of charge, at the Board’s offices during
ordinary office hours and in any other manner that the Board
directs.
(4)
The Board may, on request, provide information
recorded in the register to members of the public in any other
manner.
(5)
The Board may correct any error in or omission
from the register.
(6)
The requirement to keep a register of
disciplinary action applies only to disciplinary action taken after the
commencement of this section. However, the Board may include in the register
disciplinary action taken before the commencement of this section, or
publicise such action in any other manner, in accordance with this
Division.
(7)
This section extends to disciplinary action taken
outside this State, to the extent that the particulars of that disciplinary
action are known to the Board.
41Quashing or variation of
disciplinary action
(1)
If disciplinary action is quashed or varied on
appeal or review after the action was publicised by the Board under this
Division, the result of the appeal or review is to be publicised with equal
prominence by the Board.
(2)
If the disciplinary action was recorded in the
register kept by the Board under this Division, any reference to that
disciplinary action is to be removed from the register or varied, as
appropriate.
42Liability for publicising
disciplinary action
(1)
No liability is incurred by the State, the Board,
the Director or any person acting at the direction of the Board or Director in
respect of anything done in good faith for the purpose of:
(a)
publicising disciplinary action under this
Division, or
(b)
exercising the functions of the Board under this
Division.
(2)
No liability is incurred by a person publishing
in good faith disciplinary action, or a fair report or summary of disciplinary
action, recorded in a register kept by the Board, or otherwise publicised by
the Board, under this Division.
(3)
In this section:
liability includes liability in
defamation.
43General
(1)
The provisions of this Division are subject to
any order made by the Tribunal under section 75 of the Administrative Decisions Tribunal Act
1997.
Note—
Section 75 of the Administrative
Decisions Tribunal Act 1997 allows the Tribunal to make an
order prohibiting or restricting the disclosure of
information.
(2)
If disciplinary action involves the suspension or
cancellation of the certificate of accreditation held by a person because of
the infirmity, injury or mental or physical illness of the person, the reason
for the suspension or cancellation, and any other information relating to the
infirmity, injury or mental or physical illness of the person, is not to be
recorded in the register kept under this Division or otherwise
publicised.
(3)
Despite subsection (2), the name and other
identifying particulars of the person against whom the disciplinary action was
taken, and the kind of disciplinary action taken, must be publicised, and
recorded in the register kept under this Division, in accordance with the
requirements set out in this Division.
Division 7Miscellaneous
44Duty of confidentiality of
client communications
(1)
An accredited certifier must comply with a
requirement under this Part or Part 4 or 5 to answer a question or to produce
information or a document despite any duty of confidentiality in respect of a
communication between the accredited certifier and a
client.
(2)
Subsection (1) applies only if the client is the
complainant or consents to the disclosure of the communication
concerned.
(3)
An accredited certifier may disclose a matter to
the Board or the Tribunal in breach of any such duty of confidentiality if the
Board or Tribunal is satisfied that it is necessary for the accredited
certifier to do so in order to rebut an allegation in the
complaint.
Part 4Investigation of certifying
authorities
45Investigation of councils
acting as certifying authorities
(1)
The Board may appoint a member of its staff as an
authorised officer to investigate the work and activities of a council in its
capacity as a certifying authority.
(2)
The authorised officer must report to the Board
on the results of the investigation.
(3)
The Board must send a copy of the report to the
Director-General of the Department of Local Government and to the
council.
(4)
A report furnished to the council under this
section must be presented at the next meeting of the council after the report
is received.
(5)
Within 40 days after it receives a report under
this section, a council must give written notice to the Director-General of
the Department of Local Government and to the Board of the things done or
proposed to be done to give effect to any recommendations contained in the
report and may make submissions in relation to any matter contained in the
report.
(6)
The Board must take into account any submissions
received in accordance with subsection (5) and may revise its
report.
(7)
If the Board revises its report, the Board must
send a copy of the revised report to the Director-General of the Department of
Local Government and to the council.
(8)
The Board is to make a copy of its report in its
final form publicly available.
(9)
If the Board is of the opinion that a council has
not taken appropriate action about a matter investigated under this section,
the Board may make recommendations to the Director-General of the Department
of Local Government as to the measures that it considers appropriate to be
taken in relation to the matter.
46Investigation of accredited
certifiers acting as certifying authorities
(1)
The Board may appoint a member of its staff as an
authorised officer to investigate the work and activities of an accredited
certifier in his or her capacity as a certifying
authority.
(2)
The authorised officer must report to the Board
on the results of the investigation.
(3)
The Board must send a copy of the report to the
accredited certifier with a notice that states that the accredited certifier
may make written submissions to the Board within 28 days after the date of the
notice.
(4)
The Board must take into account any submissions
received in accordance with subsection (3).
(5)
If satisfied, as a result of any such
investigation, that the accredited certifier is or may be guilty of
unsatisfactory professional conduct or professional misconduct within the
meaning of Part 3, the Board may take any action under Part 3 in relation to
any matter arising from the report that it could take in relation to a
complaint, including applying to the Tribunal for a disciplinary finding in
accordance with section 31.
(6)
The Tribunal may take any action under Division 5
of Part 3 in relation to a matter arising from the report that is referred to
the Tribunal by the Board that it could take in relation to a
complaint.
47Extension of investigations to
former accredited certifiers
(1)
An investigation under this Part may be carried
out in relation to a person whose certificate of accreditation has been
suspended or cancelled or has lapsed.
(2)
Accordingly, any powers of an authorised officer
in relation to the carrying out of an investigation under this Part may be
exercised in relation to a person referred to in subsection
(1).
Part 5Powers relating to
investigations
Division 1Powers of Board and authorised
officers to require production of evidence
48Powers of Board or authorised
officer to obtain evidence
(1)
For the purposes of carrying out an investigation
under Part 3 or 4, the Board or an authorised officer may direct a person to
do any one or more of the following:
(a)
to appear personally before the Board or
authorised officer at a time and place specified in the
direction,
(b)
to give evidence (including evidence on
oath),
(c)
to produce to the Board or authorised officer any
document that is in that person’s custody or under that person’s
control,
(d)
to grant to the Board or authorised officer such
authorities as may be necessary to enable the Board or authorised officer to
gain access to any document that is in the custody or under the control of any
other person.
(2)
The Board or an authorised officer may inspect
any document produced under this section and may retain it for such period as
the Board or officer thinks necessary for the purposes of the investigation in
relation to which it was produced. The Board or authorised officer may make
copies of the document or any part of the document.
(3)
If the accredited certifier against whom any
complaint is made (or taken to be made) claims a lien over documents relating
to the matter the subject of the complaint, the Board may require the
accredited certifier to waive the lien if satisfied it is necessary for the
orderly transaction of the complainant’s business.
(4)
For the purposes of this section, a member of the
Board or an authorised officer may administer an oath (or, if the
investigation is being conducted by a committee that is exercising delegated
functions, by a member of the committee).
Division 2Power of entry to
premises
49Power of
entry
(1)
An authorised officer may enter any premises if
it is reasonably necessary for the purpose of carrying out an investigation
under Part 3 or 4.
(2)
Entry may only be made at any reasonable hour in
the daytime or at any hour during which business is in progress or is usually
carried on at the premises.
(3)
When exercising a power of entry under this Part,
an authorised officer may be accompanied by such assistants as the authorised
officer considers necessary.
50Inspections and
investigations
A person authorised to enter premises under this
Part may:
(a)
inspect the premises and any article, matter or
thing on the premises, and
(b)
for the purpose of an inspection:
(i)
open any ground and remove any flooring and take
such measures as may be necessary to ascertain the character and condition of
the premises and of any pipe, sewer, drain, wire or fitting,
and
(ii)
require the opening, cutting into or pulling down
of any work if the person authorised has reason to believe or suspect that
anything on the premises has been done in contravention of this Act or the
Environmental Planning and Assessment Act
1979, or the regulations under either of those Acts or an
environmental planning instrument, and
(c)
take measurements, make surveys and take levels
and, for those purposes, dig trenches, break up the soil and set up any posts,
stakes or marks, and
(d)
require any person at those premises to answer
questions or otherwise furnish information in relation to the matter the
subject of the inspection or investigation, and
(e)
take samples or photographs, and make video and
audio recordings, in connection with any inspection, and
(f)
seize anything that the person suspects on
reasonable grounds is connected with an offence against this Act or the
Environmental Planning and Assessment Act
1979, or the regulations under either of those Acts or
secure any such thing against interference.
51Use of
force
(1)
Reasonable force may be used for the purpose of
gaining entry to any premises (other than residential premises) under a power
conferred by this Part, but only if authorised by the Board in accordance with
this section.
(2)
The authority of the Board:
(a)
must be in writing, and
(b)
must be given in respect of the particular entry
concerned, and
(c)
must specify the circumstances which are required
to exist before force may be used.
52Notification of use of force
or urgent entry
(1)
A person authorised to enter premises under this
Part who:
(a)
uses force for the purpose of gaining entry to
the premises, or
(b)
enters the premises in an emergency without
giving written notice to the owner or occupier,
must promptly advise the Board.
(2)
The Board must give notice of the entry to such
persons or authorities as appear to the Board to be appropriate in the
circumstances.
53Care to be
taken
(1)
In the exercise of a function under this Part, a
person authorised to enter premises must do as little damage as possible. The
Board must provide, if necessary, other means of access in place of any taken
away or interrupted by a person authorised by the Board.
(2)
As far as practicable, entry on to fenced land is
to be made through an existing opening in the enclosing fence. If entry by
that means is not practicable, a new opening may be made in the enclosing
fence, but the fence is to be fully restored when the need for entry
ceases.
54Compensation
The Board must pay compensation for any damage
caused by any person authorised by the Board under this Part to enter
premises, other than damage arising from work done for the purpose of an
inspection which reveals that there has been a contravention of this Act or
the Environmental Planning and Assessment Act
1979, the regulations under either of those Acts or an
environmental planning instrument.
55Authority to enter
premises
(1)
A power conferred by this Division on an
authorised officer to enter premises, or to make an inspection or take other
action on premises, or to make a requirement of any person may not be
exercised unless the authorised officer is in possession of an authority and
produces the authority if required to do so by the owner or occupier of the
premises concerned or the person of whom the requirement is
made.
(2)
The authority must be a written authority which
is issued by the Board and which:
(a)
states that it is issued under this Act,
and
(b)
gives the name of the authorised officer to whom
it is issued, and
(c)
describes the nature of the powers conferred and
the source of the powers, and
(d)
states the date (if any) on which it expires,
and
(e)
describes the kind of premises to which the power
extends.
(3)
This section does not apply to a power conferred
by a search warrant.
56Restrictions on power of entry
to residential premises
The powers of entry and inspection conferred by
this Division are not exercisable in relation to any part of premises being
used for residential purposes except:
(a)
with the permission of the occupier of that part
of the premises, or
(b)
under the authority conferred by a search
warrant.
57Search
warrants
(1)
An authorised officer may apply to an authorised
justice if the authorised officer has reasonable grounds for believing that it
is necessary to enter premises for the purposes of carrying out an
investigation under Part 3 or 4.
(2)
An authorised justice to whom such an application
is made may, if satisfied that there are reasonable grounds for doing so,
issue a search warrant authorising an authorised officer named in the
warrant:
(a)
to enter the premises, and
(b)
to search the premises for evidence relevant to
the investigation of the complaint concerned.
(3)
Part 3 of the Search Warrants
Act 1985 applies to a search warrant issued under this
section.
(4)
Without limiting the generality of section 18 of
the Search Warrants Act 1985, a police
officer:
(a)
may accompany an authorised officer executing a
search warrant issued under this section, and
(b)
may take all reasonable steps to assist the
authorised officer in the exercise of the officer’s functions under this
section.
(5)
In this section, authorised justice has the same
meaning as in the Search Warrants Act
1985.
Division 3General
provisions
58Obstruction of authorised
persons
(1)
A person must not obstruct, hinder or interfere
with an authorised officer in the exercise of the authorised officer’s
functions under this Part.
(2)
A person must not fail to comply with a direction
or requirement of the Board or an authorised officer made in accordance with
this Part.
Maximum penalty: 50 penalty
units.
59Limitation on
self-incrimination
(1)
A person who is required under this Act to answer
a question, produce a thing or provide information is not excused from
answering the question, producing that thing or providing the information on
the ground that the answer to the question, the production of the thing or the
provision of the information might tend to incriminate the person or make the
person liable to a penalty.
(2)
However, any answer given to a question, any
thing produced or any information provided by a natural person in compliance
with a requirement under this Act is not admissible in evidence against the
person in criminal proceedings (except proceedings for an offence against
section 58 of this Act or section 307B or 307C of the Crimes
Act 1900).
Part 6Requirements relating to
accredited certifiers
Division 1Record keeping and
notifications
60Record keeping by accredited
certifiers
(1)
An accredited certifier must, in accordance with
the regulations, cause such documents and records to be kept as are prescribed
by the regulations.
(2)
If the Board requests, by notice in writing
served on an accredited certifier, that the accredited certifier provide a
copy to the Board of any document or record required to be kept under
subsection (1), the accredited certifier must provide a copy of the document
or record to the Board within the time specified in the
notice.
Maximum penalty: 50 penalty
units.
61Board to be notified of
certain events
(1)
An accredited certifier must notify the Board in
writing of each of the following events within 7 days of the accredited
certifier becoming aware of the event:
(a)
the suspension or cancellation of an equivalent
authorisation held by the accredited certifier,
(b)
the variation of conditions of, or imposition of
conditions on, an equivalent authorisation held by the accredited
certifier,
(c)
the institution of proceedings against the
accredited certifier for an offence that relates to the functions or
obligations of a person as an accredited certifier or the holder of an
equivalent authorisation, or involves fraud or dishonesty,
(d)
the investigation of a complaint against the
accredited certifier by an authority of another jurisdiction in relation to
anything done or omitted by the accredited certifier as the holder of an
equivalent authorisation,
(e)
the accredited certifier’s ceasing to be
covered by the insurance required by Division 2 (unless notification as
referred to in subsection (2) (b) has already been provided to the
Board),
(f)
any other event prescribed by the regulations for
the purposes of this subsection.
Maximum penalty: 50 penalty
units.
(2)
At least 7 days before the insurance held by an
accredited certifier for the purposes of Division 2 expires, the accredited
certifier must notify the Board in writing:
(a)
that arrangements have been made for the
accredited certifier to be covered from that expiry by further insurance and
including in that notification evidence of those arrangements,
or
(b)
stating that the accredited certifier has been
unable to obtain further insurance to take effect from that
expiry.
Maximum penalty: 50 penalty
units.
(3)
An accredited certifier must notify the Board in
writing of any change required to the particulars recorded in the Register in
relation to the accredited certifier (other than a change required because of
an event referred to in subsection (1)) within 14 days of the accredited
certifier becoming aware of the need for the change.
Maximum penalty: 10 penalty
units.
Division 2Insurance
62Application of
Division
This Division applies to:
(a)
accredited certifiers, and
(b)
such other persons as are prescribed by the
regulations for the purposes of this section (referred to in this Division as
building
practitioners).
63Accredited certifiers to have
required insurance
(1)
An accredited certifier must not:
(a)
exercise the functions of a certifying authority,
or
(b)
hold himself or herself out as being covered by
the required insurance,
unless he or she is covered by the required
insurance.
Maximum penalty: 100 penalty
units.
(2)
For the purposes of this section, an accredited
certifier is covered by the required insurance if he or she is indemnified by
an insurance policy that complies with the regulations against any liability
to which he or she may become subject as a result of exercising the functions
of a certifying authority.
(3)
For the purposes of this section, an accredited
certifier who is employed by a council to exercise the functions of a
certifying authority on its behalf, whether within or beyond its area, is
covered by the required insurance if the council is indemnified by its general
insurance policy against any liability to which it may become subject as a
result of the exercise of those functions by the accredited
certifier.
64Building
practitioners
(1)
In this section:
building
work includes the design or inspection of building work and
the issuing of a Part 4A certificate or complying development certificate in
respect of building work.
subdivision work includes the design
or inspection of subdivision work and the issuing of a Part 4A certificate or
complying development certificate in respect of subdivision
work.
(2)
A building practitioner must not:
(a)
carry out any building work or subdivision work,
or
(b)
hold himself or herself out as being covered by
the required insurance,
unless he or she is covered by the required
insurance.
Maximum penalty: 500 penalty units (in the case
of a corporation) or 100 penalty units (in any other
case).
(3)
For the purposes of this section, a building
practitioner is covered by the required insurance if he or she is indemnified
by an insurance policy that complies with the regulations against any
liability to which he or she may become subject as a result of carrying out
building work or subdivision work.
65Regulations under this
Division
Without limiting the matters for which the
regulations may provide in relation to an insurance policy, the regulations
may make provision for or with respect to the following:
(a)
the persons or bodies who may be the insurers
under such a policy,
(b)
the period for which the insured is to be
indemnified under such a policy,
(c)
the amount in respect of which the insured is to
be indemnified under such a policy,
(d)
the risks in respect of which the insured is to
be indemnified under such a policy,
(e)
the form in which such a policy must be
expressed,
(f)
the obligations on a person who is the insurer
under such a policy,
(g)
the issue of such a policy in respect of
liability incurred by a person who was formerly an accredited
certifier.
Division 3Conflicts of
interest
66Conflicts of
interest
(1)
An accredited certifier must not issue a Part 4A
certificate or complying development certificate in relation to any aspect of
development:
(a)
if he or she has been involved in the design of
that aspect of the development, or
(b)
if he or she has been involved in the carrying
out of work on that aspect of the development, or
(c)
if he or she is the applicant for the certificate
or is related to the applicant for the certificate, or
(d)
if he or she is associated with the council of
the area in which the development is to be carried out, or
(e)
if he or she is related to a person who was
involved in the design or construction of that aspect of the development,
or
(f)
if he or she has a pecuniary interest in that or
any other aspect of the development.
Maximum penalty: 300 penalty
units.
(2)
If an accredited certifier issues (otherwise than
as a principal certifying authority) a compliance certificate of the kind
referred to in section 109C (1) (a) (i) of the Environmental
Planning and Assessment Act 1979 for an aspect of
development, the accredited certifier:
(a)
does not contravene subsection (1) (a) by being
involved in the design of that aspect of the development,
and
(b)
does not contravene subsection (1) (e) by being
related to a person who was involved in the design of that aspect of the
development.
(3)
Subsection (1) does not make it an offence for an
accredited certifier who is an employee of a council to issue a Part 4A
certificate in relation to development that is to be carried out in the area
of the council if:
(a)
the certificate relates to development for which
the council is not the consent authority, and
(b)
the accredited certifier issues the certificate
in the course of his or her employment with the
council.
(4)
Subsection (1) does not apply to any action of an
accredited certifier that is done in accordance with an exemption issued under
section 71.
67Meaning of being involved in
the design of an aspect of the development
(1)
For the purposes of this Division, an accredited
certifier is involved in the design of an aspect of development:
(a)
if the accredited certifier is involved in the
preparation of the plans or specifications for that aspect of the development,
or
(b)
in such other circumstances as may be prescribed
by the regulations.
(2)
Despite subsection (1), the regulations may
prescribe, for the purposes of this Division, circumstances in which an
accredited certifier is taken not to be involved in the design of an aspect of
development.
68Meaning of being related to
another person
For the purposes of this Division, an accredited
certifier is related to another person if:
(a)
the accredited certifier is an employer, partner
or employee of the other person, or
(b)
the accredited certifier is employed by the same
employer as the other person, or
(c)
the accredited certifier is employed by a
subsidiary (within the meaning of the Corporations Act
2001 of the Commonwealth) of the other person or the other
person controls (within the meaning of section 50AA of that Act) the employer
of the accredited certifier, or
(d)
the other person is employed by a subsidiary
(within the meaning of the Corporations Act
2001 of the Commonwealth) of the employer of the
accredited certifier or the accredited certifier controls (within the meaning
of section 50AA of that Act) the employer of the other person,
or
(e)
the accredited certifier is a spouse, de facto
partner (whether of the same or the opposite sex), sibling, parent or child of
the other person, or
(f)
the accredited certifier has a contractual
arrangement with the other person that might reasonably be seen to give rise
to a conflict between the accredited certifier’s duties as an accredited
certifier and the accredited certifier’s interests under the
arrangement.
69Meaning of being associated
with a council
For the purposes of this Division, an accredited
certifier is associated with a council if the accredited certifier:
(a)
is a councillor or employee of the council,
or
(b)
is related to a councillor or employee of the
council, or
(c)
has a contractual arrangement with the council
that might reasonably be seen to give rise to a conflict between the
accredited certifier’s duties as an accredited certifier and the
accredited certifier’s interests under the
arrangement.
70Meaning of having a pecuniary
interest
(1)
For the purposes of this Division, an accredited
certifier has a pecuniary interest in an aspect of development if there is a
reasonable likelihood or expectation of appreciable financial gain or loss to
the accredited certifier, or to a person to whom he or she is
related.
(2)
However, an accredited certifier does not have
such a pecuniary interest if the interest is so remote or insignificant that
it could not reasonably be regarded as likely to influence any decision the
person might make in relation to that aspect of the
development.
71Board may grant exemptions
from certain provisions relating to conflicts of
interest
(1)
The Board may, on application, grant an exemption
in writing to an accredited certifier from all or any of the requirements of
section 66 (1) (d) in relation to a particular development or class of
development.
(2)
An exemption may be granted subject to
conditions.
Division 4Other offences relating to
improper conduct
72Acting in a manner not
authorised by certificate of accreditation
An accredited certifier must not do any thing
that is required by law to be done by an accredited certifier if the
accredited certifier’s certificate of accreditation does not authorise
the accredited certifier to do that thing.
Maximum penalty: 300 penalty
units.
73Contravention of terms and
conditions of accreditation
An accredited certifier must not contravene or
fail to comply with any term or condition of the accredited certifier’s
certificate of accreditation.
Maximum penalty: 300 penalty
units.
74Notice to be given of certain
matters
(1)
A person (other than a council) who is appointed
as the principal certifying authority in relation to development must give
notice, in accordance with this section, to the person who made the
appointment of:
(a)
the suspension or cancellation of the relevant
certificate of accreditation, or
(b)
any change in the certificate of accreditation or
conditions imposed on it that would prevent the appointed person from carrying
out his or her duties as principal certifying authority for the
development.
Maximum penalty: 50 penalty
units.
(2)
A person who is required to give a notice under
this section must give the notice in writing within 7 days after the person
becomes aware of the matters to which the notice
relates.
Part 7Constitution and management of
Board
75Constitution of
Board
(1)
There is constituted by this Act a corporation
with the corporate name of the Building Professionals
Board.
(2)
The Board is, for the purposes of any Act, a
statutory body representing the Crown.
(3)
The Board is subject to the control and direction
of the Minister in the exercise of its functions.
76Membership and procedure of
Board
(1)
The Board is to consist of at least 3 members
(but not more than 8 members) appointed by the Minister.
(2)
The Minister is to ensure that the persons
appointed as members of the Board have knowledge or experience relevant to one
or more of the following:
(a)
building and construction law or administrative
law,
(b)
the building and subdivision certification
process under the Environmental Planning and Assessment
Act 1979,
(c)
the building industry,
(d)
government administration,
(e)
local government development assessment
processes,
(f)
consumer protection.
(3)
Of the members appointed by the Minister, one is,
in and by the instrument of appointment or another instrument made by the
Minister, to be appointed as President of the Board and another as Deputy
President of the Board.
(4)
Schedule 1 has effect with respect to the members
and procedure of the Board.
77Functions of
Board
The Board has the following functions:
(a)
the accreditation of persons as accredited
certifiers for the purposes of the Environmental
Planning and Assessment Act 1979,
(b)
the promotion and maintenance of standards of
building and subdivision certification in New South Wales,
(c)
the investigation of complaints against
accredited certifiers,
(d)
the taking of disciplinary action against
accredited certifiers,
(e)
the investigation of certifying
authorities,
(f)
the prosecution of offences against this Act or
the regulations, or any offence under the Environmental
Planning and Assessment Act 1979 or the regulations under
that Act that relates to accredited certifiers or certifying
authorities,
(g)
the review of the accreditation scheme under this
Act,
(h)
the investigation of matters referred to it by
the Minister for advice and report in relation to accredited certifiers and
the accreditation of certifiers,
(i)
the provision of advice to the Minister with
respect to any other matter in connection with the administration of this
Act,
(j)
such other functions as are conferred or imposed
on the Board by or under this Act or any other Act.
78Staff of
Board
(1)
A Director and such other staff as may be
necessary to enable the Board to exercise its functions are (subject to this
section) to be employed under Chapter 2 of the Public Sector
Employment and Management Act 2002.
(2)
The Board may arrange for the use of the services
of any staff (by secondment or otherwise) or facilities of a government
agency. For the purposes of this Act, a person whose services are utilised
under this subsection is a member of the staff of the
Board.
(3)
The Board may engage consultants or other persons
for the purpose of obtaining services, information or
advice.
79Appointment of advisory and
other committees
(1)
The Board may appoint such advisory or other
committees as the Board considers appropriate for the purpose of assisting the
Board in the exercise of its functions.
(2)
A committee has such functions as the Board may
from time to time determine in respect of it.
(3)
A committee consists of such committee members
appointed by the Board as the Board thinks fit.
(4)
It does not matter that any or all of the members
of a committee are not members of the Board.
(5)
A committee member holds office for such period
as is specified in the instrument of appointment of the committee member, but
any such appointment may be terminated by the Board at any
time.
(6)
One of the committee members, in and by the
instrument by which the committee member is appointed, is to be appointed as
chairperson of the committee.
(7)
A committee member is entitled to be paid such
fees and allowances (if any) as the Minister may determine in respect of the
committee member.
(8)
Subject to the regulations and any directions of
the Board, the procedure of a committee appointed under this section is to be
as determined by the committee.
(9)
The Board may dissolve a committee appointed
under this section.
80Delegation of Board’s
functions
(1)
Subject to subsection (2) and any regulations
referred to in subsection (4), the Board may delegate to an authorised person
any of its functions, other than this power of
delegation.
(2)
Subject to any regulations referred to in
subsection (4), the Board is to ensure that:
(a)
a committee to which functions are delegated
under this section comprises members who are suitably qualified to carry out
those functions, and
(b)
a committee to which the function of hearing or
determining a complaint is delegated does not include any person who was
involved in the assessment or investigation of the complaint,
and
(c)
a person to whom the function of hearing or
determining a complaint is delegated has not been involved in the assessment
or investigation of the complaint.
(3)
A delegate may sub-delegate to an authorised
person any function delegated by the Board if the delegate is authorised in
writing to do so by the Board.
(4)
The regulations may make provision for or with
respect to the following:
(a)
limiting or preventing the delegation by the
Board of specified functions or types of functions,
(b)
the qualifications of persons, or the composition
of committees, to which specified functions or types of functions are
delegated by the Board.
(5)
In this section, authorised person means:
(a)
a member of staff of the Board (including the
Director), or
(b)
a committee appointed by the Board under section
79, or
(c)
a person, or committee of persons, of a class
approved by the Minister or prescribed by the
regulations.
81Building Professionals Board
Fund
(1)
There is to be established in the Special
Deposits Account a Building Professionals Board Fund (the Fund) into which is to be
paid:
(a)
all money advanced to the Board by the Treasurer
or appropriated by Parliament for the purposes of the Board,
and
(b)
all money directed or authorised to be paid into
the Fund by or under this or any other Act, and
(c)
the fees payable to the Board under this Act,
and
(d)
such amounts as are to be paid into the Fund
under section 105 (6) of the Environmental
Planning and Assessment Act 1979, and
(e)
the proceeds of the investment of money in the
Fund, and
(f)
all money received by the Board from any other
source.
(2)
The Fund may be expended in the payment of the
expenses of the Board in exercising its functions under this or any other Act
or in any other manner directed by the Minister.
Part 8Miscellaneous
82Notification of certain
matters to employer of accredited certifiers and others
(1)
The Board may give notice of the following
matters relating to a person who is or was an accredited certifier to the
employer (if any) of the person and any other person who the Board considers
appropriate to be notified:
(a)
any order made under this Act in respect of the
person,
(b)
the placing of conditions on the certificate of
accreditation of the person,
(c)
the suspension or cancellation of the
person’s certificate of accreditation,
(d)
any restriction imposed on the person under this
Act that prevents the person from re-applying for a certificate of
accreditation (whether or not for a limited time).
(2)
The notice is to include such information as the
Board considers appropriate.
83Disclosure and misuse of
information
(1)
A person must not disclose any information
obtained in connection with the administration or execution of this Act unless
that disclosure is made:
(a)
with the consent of the person from whom the
information was obtained, or
(b)
in connection with the administration or
execution of this Act, or
(c)
for the purposes of any legal proceedings arising
out of this Act or of any report of any such proceedings,
or
(d)
in accordance with a requirement imposed under
the Ombudsman Act 1974,
or
(e)
with other lawful
excuse.
(2)
A person acting in the administration or
execution of this Act must not use, either directly or indirectly, information
acquired by the person in that capacity, being information that is not
generally known but if generally known might reasonably be expected to affect
materially the market value or price of any land, for the purpose of gaining
either directly or indirectly an advantage for himself or herself, or a person
with whom he or she is associated.
(3)
A person acting in the administration or
execution of this Act, and being in a position to do so, must not, for the
purpose of gaining either directly or indirectly an advantage for himself or
herself, or a person with whom he or she is associated, influence:
(a)
the determination of a development application,
or
(b)
a decision concerning a complying development
certificate, or
(c)
the giving of an order under Division 2A of Part
6 of the Environmental Planning and Assessment
Act 1979.
(4)
In this section, a person is associated with
another person if the person is the spouse, de facto partner (whether of the
same or the opposite sex), sibling, parent or child of the other
person.
Maximum penalty: 50 penalty
units.
84Improper influence with
respect to conduct of accredited certifier acting as certifying
authority
(1)
An accredited certifier must not, on an
understanding that he or she will act otherwise than impartially in the
exercise of his or her functions as a certifying authority, seek or accept, or
offer or agree to accept, any benefit of any kind, whether on his or her own
behalf or on behalf of any other person.
Maximum penalty: 10,000 penalty units or
imprisonment for 2 years, or both.
(2)
A person must not, on an understanding that an
accredited certifier will act otherwise than impartially in the exercise of
his or her functions as a certifying authority, give, or offer or agree to
give, any benefit of any kind, whether to the accredited certifier or to any
other person.
Maximum penalty: 10,000 penalty units or
imprisonment for 2 years, or both.
(3)
In this section, a reference to the functions of
a certifying authority includes a reference to the functions of a principal
certifying authority under section 109E of the Environmental
Planning and Assessment Act 1979.
85False
representations
(1)
A person who:
(a)
issues a Part 4A certificate or complying
development certificate that he or she is not authorised by or under this Act
or the Environmental Planning and Assessment
Act 1979 to issue, or
(b)
makes any statement that is false or misleading
in a material particular in, or in connection with, a Part 4A certificate or
complying development certificate,
is guilty of an offence against this Act.
Maximum penalty: 300 penalty
units.
(2)
An accredited certifier who falsely represents
that he or she is a certifying authority or principal certifying authority in
relation to any development is guilty of an offence against this
Act.
Maximum penalty: 300 penalty
units.
86Impersonation of authorised
officers
A person must not impersonate, or falsely
represent that the person is, an authorised officer.
Maximum penalty: 50 penalty
units.
87Documents to be provided to
Board by accreditation bodies
(1)
The chief executive officer (however described)
of a professional association that was authorised as an accreditation body
under the Environmental Planning and Assessment
Act 1979 must not, without reasonable excuse, fail to
provide copies to the Board of the following documents by a date notified in
writing to the chief executive officer by the Board:
(a)
all applications for accreditation made to the
professional association under that Act,
(b)
all notices and records, and all copies of
notices and records, received by the professional association under that Act
or the regulations under that Act,
(c)
all records kept by the professional association,
under that Act or under the regulations under that Act, in relation to
complaints made to it under that Act.
Maximum penalty: 20 penalty
units.
(2)
Subsection (1) has effect despite the provisions
of any law or the rules of association or constitution of the professional
association concerned.
88Service of
documents
(1)
A document that is authorised or required by this
Act or the regulations to be served on any person may be served by:
(a)
in the case of a natural person:
(i)
delivering it to the person personally,
or
(ii)
sending it by post to the address specified by
the person for the giving or service of documents or, if no such address is
specified, the residential or business address of the person last known to the
person giving or serving the document, or
(iii)
sending it by facsimile transmission to the
facsimile number of the person, or
(b)
in the case of a body corporate:
(i)
leaving it with a person apparently of or above
the age of 16 years at, or by sending it by post to, the head office, a
registered office or a principal office of the body corporate or to an address
specified by the body corporate for the giving or service of documents,
or
(ii)
sending it by facsimile transmission to the
facsimile number of the body corporate.
(2)
Nothing in this section affects the operation of
any provision of a law or of the rules of a court authorising a document to be
served on a person in any other manner.
89Personal
liability
A matter or thing done or omitted to be done by
the Board or a member of the Board, the Director, a member of a committee
appointed under this Act, or a person acting under the direction of the Board
or the Director does not, if the matter or thing was done or omitted in good
faith for the purpose of executing this or any other Act, subject the member
of the Board, the Director, the member of the committee or the person so
acting personally to any action, liability, claim or
demand.
90Recovery of
money
Any fee payable under this Act, and any monetary
penalty imposed under this Act (other than for an offence), may be recovered
by the Board in any court of competent jurisdiction as a debt due to the
Board.
91Certificate
evidence
A certificate signed or purporting to be signed
by the Director, or an officer of the Board authorised in writing by the
Director, and stating that:
(a)
a person named in the certificate was or was not
at a specified time an accredited certifier, or
(b)
any certificate of accreditation held by a
specified person was or was not subject to a specified condition or was or was
not suspended, or
(c)
stating any other matter relating to the contents
of the Register,
is admissible in any legal proceedings and is evidence
of the matters stated in the certificate.
92Penalty
notices
(1)
An authorised officer may serve a penalty notice
on a person if it appears to the officer that the person has committed an
offence against this Act or the regulations, being an offence prescribed by
the regulations as a penalty notice offence.
(2)
A penalty notice is a notice to the effect that,
if the person served does not wish to have the matter determined by a court,
the person can pay, within the time and to the person specified in the notice,
the amount of the penalty prescribed by the regulations for the offence if
dealt with under this section.
(3)
A penalty notice may be served personally or by
post.
(4)
If the amount of penalty prescribed for an
alleged offence is paid under this section, no person is liable to any further
proceedings for the alleged offence.
(5)
Payment under this section is not to be regarded
as an admission of liability for the purpose of, and does not in any way
affect or prejudice, any civil claim, action or proceeding arising out of the
same occurrence.
(6)
The regulations may:
(a)
prescribe an offence for the purposes of this
section by specifying the offence or by referring to the provision creating
the offence, and
(b)
prescribe the amount of penalty payable for the
offence if dealt with under this section, and
(c)
prescribe different amounts of penalties for
different offences or classes of offences.
(7)
The amount of a penalty prescribed under this
section for an offence is not to exceed the maximum amount of penalty that
could be imposed for the offence by a court.
(8)
This section does not limit the operation of any
other provision of, or made under, this or any other Act relating to
proceedings that may be taken in respect of offences.
(9)
In this section, authorised officer means a person
authorised in writing by the Board as an authorised officer for the purposes
of this section.
93Proceedings for
offences
(1)
Proceedings for an offence against this Act may
be taken before a Local Court or before the Land and Environment Court in its
summary jurisdiction.
(2)
Proceedings for an offence against the
regulations may be taken before a Local Court.
(3)
If proceedings in respect of an offence against
this Act are brought in a Local Court, the maximum monetary penalty that the
court may impose in respect of the offence is, despite any other provisions of
this Act, 1,000 penalty units or the maximum monetary penalty provided by this
Act in respect of the offence, whichever is the lesser.
(4)
If proceedings in respect of an offence against
this Act are brought in the Land and Environment Court in its summary
jurisdiction, that Court may impose a penalty not exceeding the maximum
penalty provided by this Act in respect of the offence.
(5)
Despite the Criminal
Procedure Act 1986 or any other Act, proceedings for an
offence against this Act or the regulations may be commenced not later than 2
years after the date alleged to be the date on which the offence was
committed.
94Regulations
(1)
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
(2)
In particular, regulations may be made for or
with respect to the following:
(a)
the keeping by the Board of a register of
accredited certifiers and a register of disciplinary
action,
(b)
the issue of certificates of accreditation and
the evidentiary value of such certificates,
(c)
fees for applications under this
Act,
(d)
fees for the doing of anything by the Board in
connection with the accreditation or renewal of accreditation of a
person,
(e)
fees for applications to the Board for approval
of a change of principal certifying authority under the Environmental Planning and Assessment Act
1979,
(f)
the waiver of fees (whether in whole or in
part),
(g)
the surrender of certificates of
accreditation,
(h)
the issue of replacement certificates of
accreditation.
95Savings, transitional and
other provisions
Schedule 2 has effect.
96Amendment of other Acts and
regulation
The Acts and regulation specified in Schedule 3
are amended as set out in that Schedule.
97Review of
Act
(1)
The Minister is to review this Act to determine
whether the policy objectives of the Act remain valid and whether the terms of
the Act remain appropriate for securing those
objectives.
(2)
The review is to be undertaken as soon as
possible after the period of 5 years from the date of assent to this
Act.
(3)
A report on the outcome of the review is to be
tabled in each House of Parliament within 12 months after the end of the
period of 5 years.
Schedule 1Constitution and procedure of
Board
(Section 76 (4))
Part 1General
1Definitions
In this Schedule:
Deputy
President means the Deputy President of the
Board.
member means any member of the
Board.
President means the President of the
Board.
Part 2Constitution
2Terms of office of
members
Subject to this Schedule and the regulations, a
member holds office for such period (not exceeding 3 years) as is specified in
the member’s instrument of appointment, but is eligible (if otherwise
qualified) for re-appointment.
3Part-time
appointments
Members hold office as part-time
members.
4Remuneration
A member is entitled to be paid such remuneration
(including travelling and subsistence allowances) as the Minister may from
time to time determine in respect of the member.
5Duty of members to act in
interests of Board
A member has a duty to act in the best interests
of the Board despite the fact that the member may have been appointed because
of his or her involvement or membership in a professional association or other
body.
6Acting
members
(1)
The Minister may, from time to time, appoint a
person to act in the office of a member during the illness or absence of the
member, and the person, while so acting, has and may exercise all the
functions of the member and is taken to be a member.
(2)
The Minister may remove any person from any
office to which the person was appointed under this
clause.
(3)
A person while acting in the office of a member
is entitled to be paid such remuneration (including travelling and subsistence
allowances) as the Minister may from time to time determine in respect of the
person.
(4)
For the purposes of this clause, a vacancy in the
office of a member is taken to be an absence from the office of the
member.
7Vacancy in office of
member
(1)
The office of a member becomes vacant if the
member:
(a)
dies, or
(b)
completes a term of office and is not
re-appointed, or
(c)
resigns the office by instrument in writing
addressed to the Minister, or
(d)
is removed from office by the Minister under this
clause, or
(e)
is absent from 4 consecutive meetings of the
Board of which reasonable notice has been given to the member personally or by
post, except on leave granted by the President or unless the member is excused
by the President for having been absent from those meetings,
or
(f)
becomes bankrupt, applies to take the benefit of
any law for the relief of bankrupt or insolvent debtors, compounds with his or
her creditors or makes an assignment of his or her remuneration for their
benefit, or
(g)
becomes a mentally incapacitated person,
or
(h)
is convicted in New South Wales of an offence
that is punishable by imprisonment for 12 months or more or is convicted
elsewhere than in New South Wales of an offence that, if committed in New
South Wales, would be an offence so punishable.
(2)
The Minister may remove a member from office at
any time.
8Filling of vacancy in office
of member
If the office of a member becomes vacant, a
person is, subject to this Act and the regulations, to be appointed to fill
the vacancy.
9President and Deputy
President
(1)
The President or Deputy President vacates office
as President or Deputy President if he or she:
(a)
is removed from that office by the Minister under
this clause, or
(b)
resigns that office by instrument in writing
addressed to the Minister, or
(c)
ceases to be a member of the
Board.
(2)
The Minister may at any time remove the President
or Deputy President from office as President or Deputy
President.
10Disclosure of pecuniary
interests
(1)
If:
(a)
a member has a direct or indirect pecuniary
interest in a matter being considered or about to be considered at a meeting
of the Board, and
(b)
the interest appears to raise a conflict with the
proper performance of the member’s duties in relation to the
consideration of the matter,
the member must, as soon as possible after the relevant
facts have come to the member’s knowledge, disclose the nature of the
interest at a meeting of the Board.
(2)
A disclosure by a member at a meeting of the
Board that the member:
(a)
is a member, or is in the employment, of a
specified company or other body, or
(b)
is a partner, or is in the employment, of a
specified person, or
(c)
has some other specified interest relating to a
specified company or other body or to a specified
person,
is a sufficient disclosure of the nature of the interest
in any matter relating to that company or other body or to that person which
may arise after the date of the disclosure and which is required to be
disclosed under subclause (1).
(3)
Particulars of any disclosure made under this
clause must be recorded by the Board in a book kept for the purpose and that
book must be open at all reasonable hours to inspection by any person on
payment of the fee determined by the Board.
(4)
After a member has disclosed the nature of an
interest in any matter, the member must not, unless the Minister or the Board
otherwise determines:
(a)
be present during any deliberation of the Board
with respect to the matter, or
(b)
take part in any decision of the Board with
respect to the matter.
(5)
For the purposes of the making of a determination
by the Board under subclause (4), a member who has a direct or indirect
pecuniary interest in a matter to which the disclosure relates must
not:
(a)
be present during any deliberation of the Board
for the purpose of making the determination, or
(b)
take part in the making by the Board of the
determination.
(6)
A member who is or was:
(a)
a member of a professional association,
or
(b)
an accredited certifier, or
(c)
an officer of a local
council,
does not, by reason only of that fact, hold a direct or
indirect pecuniary interest in a matter for the purposes of this
clause.
(7)
A contravention of this clause does not
invalidate any decision of the Board.
(8)
This clause applies to a member of a committee of
the Board and the committee in the same way as it applies to a member of the
Board and the Board.
(9)
For the purposes of this clause (but subject to
subclause (6)), a person has a direct or indirect pecuniary interest in a
matter if there is a reasonable likelihood or expectation of appreciable
financial gain or loss to the person, or to a person to whom he or she is
related (within the meaning of section 68), but does not have such an interest
in the matter if the interest is so remote or insignificant that it could not
reasonably be regarded as likely to influence any decision the person might
make in relation to the matter.
11Effect of certain other
Acts
(1)
Chapter 2 of the Public Sector
Employment and Management Act 2002 does not apply to or in
respect of the appointment of a member.
(2)
If by or under any Act provision is made:
(a)
requiring a person who is the holder of a
specified office to devote the whole of his or her time to the duties of that
office, or
(b)
prohibiting the person from engaging in
employment outside the duties of that office,
the provision does not operate to disqualify the person
from holding that office and also the office of a member or from accepting and
retaining any remuneration payable to the person under this Act as a
member.
Part 3Procedure
12General
procedure
(1)
The procedure for the calling of meetings of the
Board and for the conduct of business at those meetings is, subject to this
Act and the regulations, to be as determined by the
Board.
(2)
The Board is to determine when and how often the
Board is to meet for the purposes of carrying out its
functions.
13Quorum
The quorum for a meeting of the Board is a
majority of its members for the time being.
14Presiding
member
(1)
The President (or, in the absence of the
President, the Deputy President, or in the absence of both the President and
the Deputy President, a person elected by the members of the Board who are
present at a meeting of the Board) is to preside at a meeting of the
Board.
(2)
The presiding member has a deliberative vote and,
in the event of an equality of votes, has a second or casting
vote.
15Voting
A decision supported by a majority of the votes
cast at a meeting of the Board at which a quorum is present is the decision of
the Board.
16Transaction of business
outside meetings or by telephone
(1)
The Board may, if it thinks fit, transact any of
its business by the circulation of papers among all the members of the Board
for the time being, and a resolution in writing approved in writing by a
majority of those members is taken to be a decision of the
Board.
(2)
The Board may, if it thinks fit, transact any of
its business at a meeting at which members (or some members) participate by
telephone, closed-circuit television or other means, but only if any member
who speaks on a matter before the meeting can be heard by the other
members.
(3)
For the purposes of:
(a)
the approval of a resolution under subclause (1),
or
(b)
a meeting held in accordance with subclause
(2),
the President and each member have the same voting
rights as they have at an ordinary meeting of the Board.
(4)
A resolution approved under subclause (1) is,
subject to the regulations, to be recorded in the minutes of the meetings of
the Board.
(5)
Papers may be circulated among the members for
the purposes of subclause (1) by facsimile or other transmission of the
information in the papers concerned.
17Minutes
The Board must cause full and accurate minutes to
be kept of the proceedings of each meeting of the
Board.
18First
meeting
The Minister may call the first meeting of the
Board in such manner as the Minister thinks fit.
Schedule 2Savings, transitional and
other provisions
(Section 95)
Part 1General
1Regulations
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of the following
Acts:
this Act
(2)
Any such provision may, if the regulations so
provide, take effect from the date of assent to the Act concerned or a later
date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication in the
Gazette, the provision does not operate so as:
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
(4)
The provisions of this Schedule are subject to
the regulations.
Part 2Provisions consequent on
enactment of this Act
2Existing
accreditations
(1)
A person who, immediately before the commencement
of this clause, was an accredited certifier within the meaning of the Environmental Planning and Assessment Act
1979 (as in force immediately before that commencement) is
taken to be the holder of a certificate of accreditation under this Act that
authorises the person to undertake the same functions as an accredited
certifier as the person’s accreditation under the Environmental Planning and Assessment Act
1979 authorised.
(2)
A certificate of accreditation referred to in
subclause (1) is subject to the same conditions that applied to the
accreditation that was granted under the Environmental
Planning and Assessment Act 1979.
(3)
Despite subclauses (1) and (2):
(a)
the conditions of any certificate of
accreditation taken to have been granted as referred to in this clause may be
varied in accordance with this Act, and
(b)
new conditions may be imposed in accordance with
this Act on any such certificate of accreditation, and
(c)
any such certificate of accreditation may be
suspended or cancelled in accordance with this Act.
3Pending disciplinary
proceedings against accredited certifiers and existing disciplinary
findings
(1)
A complaint against an accredited certifier being
dealt with by an accreditation body immediately before the repeal of Division
3 of Part 4B of the Environmental Planning and Assessment
Act 1979 is, subject to the regulations, to continue to be
dealt with by the Board as a complaint under Part 3 of this
Act.
(2)
Any investigation under Division 1B of Part 6 of
the Environmental Planning and Assessment Act
1979 that was not completed at the repeal of that Division
may be continued by the Board under Part 4 of this Act.
(3)
A disciplinary finding (within the meaning of
Part 4B of the Environmental Planning and Assessment
Act 1979 as in force immediately before its repeal)
against an accredited certifier is taken to be a disciplinary finding within
the meaning of Part 3 of this Act.
(4)
Sections 20 (2) and 47 extend to a person who was
an accredited certifier within the meaning of the Environmental Planning and Assessment Act
1979 before the commencement of this
subclause.
(5)
An investigation carried out under Division 1B of
Part 6 of the Environmental Planning and Assessment
Act 1979 is taken to have been carried out under Part 4 of
this Act.
4Pending applications for
accreditation
(1)
An application for accreditation as an accredited
certifier made under the Environmental Planning and Assessment
Act 1979 before the commencement of this clause but not
finally determined before that commencement is taken to have
lapsed.
(2)
If the Board considers it appropriate, the Board
may, in relation to any application for a certificate of accreditation by a
person who made an application that is taken to have lapsed under subclause
(1), waive the whole or any part of the fee for making an application for
accreditation under this Act.
5Accreditation
bodies
(1)
On the commencement of this clause, an
authorisation of a professional association as an accreditation body under the
Environmental Planning and Assessment Act
1979 ceases to have effect.
(2)
No compensation is payable to any person or body
because of the operation of this clause.
6Accreditation
scheme
(1)
The Minister may, by order published in the
Gazette, adopt (whether with or without change) as the first accreditation
scheme for the purposes of this Act a document that has been published and
publicly exhibited by a government department or statutory authority and that
complies with section 4 (2).
(2)
The provisions of section 4 (1) and (4) do not
apply to the adoption of an accreditation scheme as referred to in subclause
(1).
(3)
An accreditation scheme adopted as referred to in
subclause (1) is taken to have been adopted by the Minister in accordance with
section 4.
7Existing insurance
policies
An insurance policy that:
(a)
was in force immediately before the commencement
of this clause, and
(b)
is held by a person who was, immediately before
that commencement, an accredited certifier within the meaning of the Environmental Planning and Assessment Act
1979 (as in force immediately before that commencement),
and
(c)
complies with Division 3 of Part 4C of the
Environmental Planning and Assessment Act
1979 (as in force immediately before that
commencement),
is taken to comply with the requirements of Division 2
of Part 6 of this Act while that insurance policy remains in
force.
8Conflicts of
interest
An accredited certifier is not guilty of a
contravention of any provision of Division 3 of Part 6 solely because of
complying with any term of a contract or other binding arrangement if:
(a)
the contract or arrangement was entered into
before the commencement of the provision, and
(b)
complying with that term would not have
contravened section 109ZG of the Environmental
Planning and Assessment Act 1979 (as in force immediately
before that commencement).
9References to accredited
certifiers
A reference in any Act or instrument (other than
this Act and the regulations under this Act) to an accredited certifier within
the meaning of the Environmental Planning and Assessment
Act 1979 is taken to be a reference to an accredited
certifier within the meaning of this Act.
Schedule 3Amendment of Acts and
regulation
(Section 96)
3.1Building Professionals Act
2005
[1]Section 57 Search
warrants
Omit “authorised justice” from
section 57 (1) and (2) wherever occurring.
Insert instead “authorised warrants
officer”.
[2]Section 57
(3)
Omit “Part 3 of the Search
Warrants Act 1985”.
Insert instead “Division 4 of Part 5 of the
Law Enforcement (Powers and Responsibilities) Act
2002”.
[3]Section 57
(4)
Omit “section 18 of the Search Warrants Act
1985”.
Insert instead “section 71 of the Law Enforcement (Powers and Responsibilities) Act
2002”.
[4]Section 57
(5)
Omit the subsection. Insert instead:
(5)
In this section:
authorised warrants officer means an
authorised officer within the meaning of the Law Enforcement
(Powers and Responsibilities) Act
2002.
3.2Environmental Planning and Assessment Act 1979 No
203
[1]Section 4
Definitions
Omit the definitions of accreditation body, accredited certifier and relevant
accreditation body from section 4
(1).
[2]Section 4
(1)
Insert in alphabetical order:
accredited certifier, in relation to
matters of a particular kind, means a person who is the holder of a
certificate of accreditation under the Building
Professionals Act 2005 in relation to those
matters.
Building
Professionals Board means the Building Professionals Board
constituted under the Building Professionals Act
2005.
[3]Section 23
Delegation
Omit section 23 (1A).
[4]Section 79C
Evaluation
Omit section 79C (4). Insert instead:
(4)Consent where an accreditation
is in force
A consent authority must not refuse to grant
consent to development on the ground that any building product or system
relating to the development does not comply with a requirement of the Building Code of
Australia if the building product or system is accredited
in respect of that requirement in accordance with the
regulations.
[5]Section 80A Imposition of
conditions
Insert after section 80A (10):
(10A)
A condition of a consent has no effect to the
extent that it requires a compliance certificate to be obtained in respect of
any development.
[6]Section 85 What is a
“complying development certificate”?
Insert after section 85 (5):
(5A)
A complying development certificate has no effect
to the extent that it requires a compliance certificate to be obtained in
respect of any development.
[7]Section 85A Process for
obtaining complying development certificates
Omit section 85A (4). Insert instead:
(4)
A council or accredited certifier must not refuse
to issue a complying development certificate on the ground that any building
product or system relating to the development does not comply with a
requirement of the Building Code
of Australia if the building product or system is
accredited in respect of that requirement in accordance with the
regulations.
[8]Section 105
Regulations—Part 4
Omit “components, processes and
designs” from section 105 (3).
Insert instead “building products and
systems”.
[9]Section 105 (3)
(e)
Omit the paragraph. Insert instead:
(e)
the adoption, application or incorporation
(whether with or without modification) of a scheme of accreditation (however
described) of building products and systems,
[10]Section 105 (5) and
(6)
Insert after section 105 (4):
(5)
The regulations may make provision for or with
respect to the remission of part of the fees for development applications to
the Director-General for payment, in accordance with subsection (6), into the
Building Professionals Board Fund established under the Building Professionals Act
2005.
(6)
The Director-General is to pay into the Building
Professionals Board Fund established under the Building
Professionals Act 2005 such part of the fees for
development applications remitted to the Director-General:
(a)
as may be provided for in the regulations,
or
(b)
subject to the regulations (if any), as the
Minister directs to be paid into the Fund.
[11]Section
109EA
Omit the section. Insert instead:
109EAReplacement of principal
certifying authorities
(1)
A person may not be appointed to replace another
person as the principal certifying authority for development unless:
(a)
the Building Professionals Board so approves in
writing and the relevant council and consent authority are notified before the
replacement occurs, or
(b)
the current principal certifying authority, the
proposed principal certifying authority and the person who appointed the
current principal certifying authority agree and the Building Professionals
Board and the relevant council and consent authority are notified before the
replacement occurs.
(2)
An application to the Building Professionals
Board for approval or a notification under subsection (1) is to be accompanied
by the fee (if any) prescribed by the regulations under the Building Professionals Act 2005 and is
to be in a form approved by the Board.
(3)
If the Building Professionals Board approves the
appointment of the relevant council to replace another person as the principal
certifying authority under subsection (1) (a), the council must accept that
appointment.
[12]Section 109F Restriction on
issue of construction certificates
Insert after section 109F (1):
(1A)
A construction certificate has no effect if it is
issued after the building work or subdivision work to which it relates is
physically commenced on the land to which the relevant development consent
applies.
[13]Section 109F
(2)
Omit the subsection. Insert instead:
(2)
A certifying authority must not refuse to issue a
construction certificate on the ground that any building product or system
relating to the development does not comply with a requirement of the Building Code of
Australia if the building product or system is accredited
in respect of that requirement in accordance with the regulations made for the
purposes of Part 4.
[14]Part 4B Accreditation of
certifiers
Omit the Part.
[15]Part 4C Liability and
insurance
Omit Division 3.
[16]Part 6 Implementation and
enforcement
Omit Division 1B.
[17]Section 148A Improper
influence with respect to conduct of accredited certifier acting as certifying
authority
Omit the section.
[18]Schedule 6 Savings,
transitional and other provisions
Insert at the end of clause 1 (1):
Building
Professionals Act 2005
[19]Schedule
6
Insert at the end of the Schedule with the
appropriate Part and clause numbers:
PartBuilding Professionals Act
2005
Compliance
certificates
(1)
Section 80A (10A) does not apply to a consent
issued before the commencement of the subsection.
(2)
Section 85 (5A) does not apply to a complying
development certificate issued before the commencement of the
subsection.
Construction
certificates
Section 109F (1A) does not apply to a
construction certificate issued before the commencement of that subsection or
in relation to building work or subdivision work that was physically commenced
on the land to which the relevant development consent applies before the
commencement of that subsection.
3.3Environmental Planning and Assessment Regulation
2000
[1]Clause 3
Definitions
Omit paragraph (g) of the definition of relevant
submission period.
[2]Clause 103 Notice under
section 81A of the Act of appointment of principal certifying
authority
Omit clause 103 (f) (ii).
[3]Clause 134 Form of complying
development certificate
Omit clause 134 (1) (b)
(ii).
[4]Clause 135 Notice under
section 86 of the Act of appointment of principal certifying
authority
Omit clause 135 (f) (ii).
[5]Clause 138 Compliance
certificates
Omit clause 138 (1) (b)
(ii).
[6]Clause 147 Form of
construction certificate
Omit clause 147 (1) (b)
(ii).
[7]Clause 155 Form of occupation
certificate
Omit clause 155 (1) (b)
(ii).
[8]Clause 162C Progress
inspection unavoidably missed
Omit “accreditation body that
accredited” from clause 162C (5).
Insert instead “Building Professionals
Board”.
[9]Part 10 Accreditation bodies
and accredited certifiers
Omit the Part.
[10]Part 11
Insurance
Omit the Part.
[11]Clause 245 What is the maximum
fee?
Insert after clause 245 (2) (h):
(i)
the operational expenses of the Building
Professionals Board established under the Building
Professionals Act 2005.
[12]Clause 256A Proportion of
development application fees to be remitted to
Director-General
Omit “clause 245 (2) (g) and (h)”
from clause 256A (1).
Insert instead “clause 245 (2) (g), (h) and
(i)”.
[13]Clause 256A
(1A)
Insert after clause 256A (1):
(1A)
Such part of the amount referred to in subclause
(1) as is not directed by the Minister to be paid into the Building
Professionals Board Fund under section 105 (6) of the Act is to be applied by
the Director-General to the services referred to in clause 245 (2) (g) and
(h).
3.4Fines
Act 1996 No 99
Schedule 1 Statutory
provisions under which penalty notices issued
Insert in alphabetical order:
Building
Professionals Act 2005, section
92
3.5Law
Enforcement (Powers and Responsibilities) Act 2002 No
103
Schedule 2 Search warrants
under other Acts
Insert in alphabetical order:
Building
Professionals Act 2005, section
57
3.6Public
Finance and Audit Act 1983 No 152
Schedule 2 Statutory
bodies
Insert in alphabetical order:
Building Professionals
Board
3.7Search
Warrants Act 1985 No 37
Section 10
Definitions
Insert in alphabetical order in the definition of
search
warrant:
section 57 of the Building
Professionals Act 2005,
3.8Strata
Schemes (Freehold Development) Act 1973 No
68
Sections 37E and
37F
Omit the sections. Insert instead:
37EAccreditation of
certifiers
(1)
The provisions of Parts 2, 3, 4 and 5 and
Divisions 1, 3 and 4 of Part 6 of the Building
Professionals Act 2005, and the regulations made under
that Act for the purposes of those provisions, apply, with any necessary
modifications and any modifications prescribed by the regulations, in respect
of the following:
(a)
the appointment and accreditation of accredited
certifiers for the purposes of this Act,
(b)
accredited certifiers,
(c)
the exercise of functions under this Act by
accredited certifiers.
(2)
Without limiting subsection (1), the provisions
of the Building Professionals Act
2005 and the regulations under that Act referred to in
that subsection apply to a strata certificate in the same way as those
provisions apply to a Part 4A certificate under the Environmental Planning and Assessment Act
1979.
37FInsurance of accredited
certifiers
The provisions of Division 2 of Part 6 of the
Building Professionals Act 2005, and the
regulations made under that Act for the purposes of those provisions, apply,
with any necessary modifications and any modifications prescribed by the
regulations, to accredited certifiers exercising functions under this Act in
the same way that it applies to accredited certifiers exercising the functions
of a certifying authority within the meaning of the Environmental Planning and Assessment Act
1979.
3.9Strata
Schemes (Leasehold Development) Act 1986 No
219
Sections 66E and
66F
Omit the sections. Insert instead:
66EAccreditation of
certifiers
(1)
The provisions of Parts 2, 3, 4 and 5 and
Divisions 1, 3 and 4 of Part 6 of the Building
Professionals Act 2005, and the regulations made under
that Act for the purposes of those provisions, apply, with any necessary
modifications and any modifications prescribed by the regulations, in respect
of the following:
(a)
the appointment and accreditation of accredited
certifiers for the purposes of this Act,
(b)
accredited certifiers,
(c)
the exercise of functions under this Act by
accredited certifiers.
(2)
Without limiting subsection (1), the provisions
of the Building Professionals Act
2005 and the regulations under that Act referred to in
that subsection apply to a strata certificate in the same way as those
provisions apply to a Part 4A certificate under the Environmental Planning and Assessment Act
1979.
66FInsurance of accredited
certifiers
The provisions of Division 2 of Part 6 of the
Building Professionals Act 2005, and the
regulations made under that Act for the purposes of those provisions, apply,
with any necessary modifications and any modifications prescribed by the
regulations, to accredited certifiers exercising functions under this Act in
the same way that it applies to accredited certifiers exercising the functions
of a certifying authority within the meaning of the Environmental Planning and Assessment Act
1979.
sch 3: Am 2006 No
123, Sch 3.1.
Historical
notes
Table of amending
instruments
Building
Professionals Act 2005 No 115. Second reading speech made:
Legislative Assembly, 25.5.2005; Legislative Council, 15.11.2005. Assented to
7.12.2005. Date of commencement of Part 1, Div 1 of Part 2 and Part 7 (except
sec 77) and secs 83, 89, 94 and 95 and Sch 1, Part 1 and cl 6 of Sch 2 and Sch
3.6, 25.1.2007, sec 2 (1) and GG No 16 of 25.1.2007, p 305; date of
commencement of sec 96 and Sch 3.2 [5] [6] [12] [18] and [19], 3.3.2006, sec 2
(1) and GG No 30 of 3.3.2006, p 1051; date of commencement of Sch 3.2 [4]
[7]–[9] and [13], 23.6.2006, sec 2 (1) and GG No 82 of 23.6.2006, p
4564; date of commencement of the remainder, 1.3.2007, sec 2 (1) and GG No 16
of 25.1.2007, p 305. This Act has been amended as follows:
2006
No
123
Environmental
Planning Legislation Amendment Act 2006. Assented to
4.12.2006.
Date of commencement of Sch 3.1, assent, sec 2
(1).
Table of
amendments
Sch
3
Am 2006 No
123, Sch 3.1.