Division 2Accreditation of accredited
certifiers
5Applications for
accreditation
(1)
A person may apply to the Board for a certificate
of accreditation or the renewal of a certificate of
accreditation.
(1A)
An application for accreditation to carry out
certification work only on behalf of councils may not be made except on the
recommendation of a council.
(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)
in the case of an applicant who is an individual,
that the applicant attend an interview, undertake an oral or written
examination or provide a demonstration of the applicant’s
skills.
(4)
The regulations may make provision for or with
respect to the making of recommendations by councils for the purposes of
subsection (1A), including the form and manner of making such recommendations
and the matters that are to be taken into account when making any such
recommendation.
s 5: Am 2008 No 37,
Sch 1 [4] [5] (am 2009 No 106, Sch 1.3 [1]) [6] [7].
5AClasses of certificate of
accreditation
(1)
The Board may issue the following classes of
certificate of accreditation:
(a)
a certificate of corporate accreditation as an
accredited certifier which may only be issued to a body corporate that has at
least one director who is an accredited certifier and has as directors or
employs at least 2 other persons who are accredited
certifiers,
(b)
a certificate of individual accreditation as an
accredited certifier which may only be issued to an
individual.
(2)
The regulations may provide that different
categories of certificate of individual accreditation may be issued by the
Board.
(3)
Without limiting subsection (2), the regulations
may prescribe one or more categories of individual accreditation in relation
to persons who carry out certification work only on behalf of
councils.
s 5A: Ins 2008 No 37,
Sch 1 [8].
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 individual 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).
(9)
Nothing in subsection (8) prevents the Board from
determining an application after the expiration of the 60-day period referred
to in that subsection.
(10)
A determination pursuant to subsection (9) does
not, subject to subsection (11), prejudice or affect the continuance or
determination of an application for a review made under section 18 in respect
of a determination that is taken by subsection (8) to have been
made.
(11)
If a determination pursuant to subsection (9) is
made by issuing the relevant certificate of accreditation, the Board is
entitled, with the consent of the applicant and without prejudice to costs, to
have any application for review (being an application made under section 18 in
respect of a determination that is taken by subsection (8) to have been made)
withdrawn at any time prior to the determination of that application for
review.
s 6: Am 2008 No 37,
Sch 1 [9] [10].
6AAccreditation of persons to
carry out certification work only on behalf of councils
(1)
When determining an application under section 6
for the issue or renewal of accreditation of a person to carry out
certification work only on behalf of councils, the Board must not refuse to
issue or renew the accreditation on a ground referred to in section 7 (1) (b)
or (d) unless the Board has information that gives it reason to believe that
it should refuse the application on that ground.
(2)
Nothing in subsection (1) requires the Board to
make inquiries to satisfy itself as to any of the matters referred to in
section 7 (1) (b) or (d) before granting the application
concerned.
s 6A: Ins 2008 No 37,
Sch 1 [11] (am 2009 No 106, Sch 1.3 [2]).
7Grounds for refusal of
accreditation
(1)
The Board may refuse to issue or renew a
certificate of individual 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.
(1A)
The Board may refuse to issue or renew a
certificate of corporate accreditation:
(a)
if the body corporate concerned does not have at
least one director who is an accredited certifier and does not have as
directors or employ at least 2 other persons who are accredited certifiers,
or
(b)
if the body corporate does not comply with a
requirement under section 5 (3) (a), or
(c)
if the Board is not satisfied that the body
corporate 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 a director of,
or a person concerned in the management of, the body corporate is a fit and
proper person, or
(e)
if the body corporate’s equivalent
authorisation has been suspended or cancelled (otherwise than at its request)
under the law of another jurisdiction, or
(f)
if the body corporate or a director of, or a
person concerned in the management of, the body corporate 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
(g)
if the body corporate or a director of, or a
person concerned in the management of, the body corporate has failed to comply
with a statutory or other duty, or a contractual obligation, imposed on the
body corporate, director or person 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
(h)
if a director of, or a person concerned in the
management of, the body corporate is an undischarged bankrupt,
or
(i)
if the body corporate is the subject of a winding
up order or a controller or administrator has been appointed in respect of it,
or
(j)
if the body corporate has represented itself as
being an accredited certifier when it was not an accredited certifier,
or
(k)
if the body corporate 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 accreditation holder
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.
s 7: Am 2008 No 37,
Schs 1 [12] [13], 2 [8].
8Suspension or cancellation of
accreditation
(1)
The Board may cancel a person’s certificate
of accreditation as an accredited certifier if:
(a)
in the case of a certificate of individual
accreditation, 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 individual accreditation 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
(b1)
it is a condition of the certificate of
accreditation that the person may carry out certification work only as an
employee of a council and the person has ceased to be so employed or has
ceased to be employed in a position that includes the function of carrying out
such work, 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, or
(g)
the Board is of the opinion that the person is
not a fit and proper person to hold a certificate of accreditation,
or
(h)
the Board has determined, following an assessment
undertaken under section 9A, that the person’s accreditation should be
suspended or cancelled.
(2A)
The Board may suspend or cancel a certificate of
corporate accreditation if:
(a)
the body corporate concerned has been issued a
certificate of accreditation on the basis of a misrepresentation made by the
body corporate, or a person concerned in the management of the body corporate,
whether or not made knowingly, or
(b)
the body corporate does not have at least one
director who is an accredited certifier or does not have as directors or
employ at least 2 other persons who are accredited certifiers,
or
(c)
the Board is satisfied that the body corporate is
not covered by the insurance required by Division 2 of Part 6,
or
(d)
the body corporate’s equivalent
authorisation has been suspended or cancelled (otherwise than at its request)
under the law of another jurisdiction, or
(e)
the Board is of the opinion that a person
concerned in the management of the body corporate is not a fit and proper
person, or
(f)
a director of, or a person concerned in the
management of, the body corporate is an undischarged bankrupt,
or
(g)
a disciplinary finding under Part 3 has been made
against an accredited certifier director of the body corporate,
or
(h)
the body corporate is the subject of a winding up
order or a controller or administrator has been appointed in respect of it,
or
(i)
the body corporate, or an accredited certifier
who is a director or employee of the body corporate, 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)–(h) or (2A) (d)–(i) 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.
s 8: Am 2008 No 37,
Sch 1 [15] [16] [17] (am 2009 No 106, Sch 1.3 [3]) [18]–[20]; 2012 No
93, Sch 2.3 [1] [2].
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.
9AOngoing assessment of
accredited certifiers
(1)
The Board may, by notice in writing, require an
accredited certifier to undertake a specified type of assessment (such as an
examination) within the period specified in the notice.
(2)
The Board may issue a notice under this section
for any reason.
Note—
Action that may be taken by the Board following
an assessment includes the suspension or cancellation of accreditation under
section 8 or the imposition of conditions on, or variation of the conditions
of, accreditation under section 9.
s 9A: Ins 2012 No 93,
Sch 2.3 [3].
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 accreditation holders (the Register).
(2)
The Register must contain the following
particulars for each person who is, or has at any time been, an accreditation
holder:
(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 class and, if applicable, 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 accreditation holder 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.
s 11: Am 2008 No 37,
Schs 1 [21], 2 [3] [8].