Part 4Miscellaneous
33Act binds Crown
This Act binds the Crown in right of New South
Wales and, in so far as the legislative power of Parliament permits, the Crown
in all its other capacities.
34No contracting out
(1)
The provisions of this Act have effect despite
any provision to the contrary in any contract.
(2)
A provision of any agreement (whether in writing
or not)—
(a)
under which the operation of this Act is, or is
purported to be, excluded, modified or restricted (or that has the effect of
excluding, modifying or restricting the operation of this Act),
or
(b)
that may reasonably be construed as an attempt to
deter a person from taking action under this Act,
is void.
s 34: Subst 2002 No
133, Sch 1 [48].
34AProceedings for offences
(1)
Proceedings for an offence against this Act or
the regulations may be dealt with summarily before the Local
Court.
(2)
Proceedings for an offence against this Act or
the regulations may be commenced within, but not later than, 2 years after the
date on which the offence is alleged to have been
committed.
s 34A: Ins 2010 No
103, Sch 1 [2]. Subst 2018 No 78, Sch 1[35].
34BPenalty notices
(1)
An authorised officer within the meaning of Part
3A may issue a penalty notice to a person if it appears to the officer that
the person has committed a penalty notice offence.
(2)
A penalty notice offence is an offence against
this Act or the regulations that is prescribed by the regulations as a penalty
notice offence.
(3)
The Fines Act
1996 applies to a penalty notice issued under this
section.
Note—
The Fines Act
1996 provides that, if a person issued with a penalty
notice does not wish to have the matter determined by a court, the person may
pay the amount specified in the notice and is not liable to any further
proceedings for the alleged offence.
(4)
The amount payable under a penalty notice issued
under this section is the amount prescribed for the alleged offence by the
regulations (not exceeding the maximum amount of penalty that could be imposed
for the offence by a court).
(5)
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.
ss 34B–34D: Ins
2018 No 78, Sch 1[35].
34CLiability of directors etc for offences by
corporation—accessory to the commission of
offences
(1)
For the purposes of this section, a corporate offence is
an offence against this Act or the regulations that is capable of being
committed by a corporation.
(2)
A person commits an offence against this section
if—
(a)
a corporation commits a corporate offence,
and
(b)
the person is—
(i)
a director of the corporation,
or
(ii)
an individual who is involved in the management
of the corporation and who is in a position to influence the conduct of the
corporation in relation to the commission of the corporate offence,
and
(c)
the person—
(i)
aids, abets, counsels or procures the commission
of the corporate offence, or
(ii)
induces, whether by threats or promises or
otherwise, the commission of the corporate offence, or
(iii)
conspires with others to effect the commission of
the corporate offence, or
(iv)
is in any other way, whether by act or omission,
knowingly concerned in, or party to, the commission of the corporate
offence.
Maximum penalty—The maximum penalty for the
corporate offence if committed by an individual.
(3)
The prosecution bears the legal burden of proving
the elements of the offence against this section.
(4)
The offence against this section can only be
prosecuted by a person who can bring a prosecution for the corporate
offence.
(5)
This section does not affect the liability of the
corporation for the corporate offence, and applies whether or not the
corporation is prosecuted for, or convicted of, the corporate
offence.
(6)
This section does not affect the application of
any other law relating to the criminal liability of any persons (whether or
not directors or other managers of the corporation) who are concerned in, or
party to, the commission of the corporate offence.
ss 34B–34D: Ins
2018 No 78, Sch 1[35].
34DLiability of directors etc for specified offences by
corporation—offences attracting executive
liability
(1)
For the purposes of this section, an executive liability
offence is—
(a)
an offence against section 13(7) or (8) that is
committed by a corporation, or
(b)
an offence against the regulations
that—
(i)
is created under section 12A,
and
(ii)
is prescribed by the regulations as an offence to
which this section applies, and
(iii)
is committed by a
corporation.
(2)
A person commits an offence against this section
if—
(a)
a corporation commits an executive liability
offence, and
(b)
the person is—
(i)
a director of the corporation,
or
(ii)
an individual who is involved in the management
of the corporation and who is in a position to influence the conduct of the
corporation in relation to the commission of the executive liability offence,
and
(c)
the person—
(i)
knows that the executive liability offence (or an
offence of the same type) would be or is being committed or is recklessly
indifferent as to whether it would be or is being committed,
and
(ii)
fails to take all reasonable steps to prevent or
stop the commission of that offence.
Maximum penalty—200 penalty
units.
(3)
The prosecution bears the legal burden of proving
the elements of the offence against this section.
(4)
The offence against this section can only be
prosecuted by a person who can bring a prosecution for the executive liability
offence.
(5)
This section does not affect the liability of the
corporation for the executive liability offence, and applies whether or not
the corporation is prosecuted for, or convicted of, the executive liability
offence.
(6)
This section does not affect the application of
any other law relating to the criminal liability of any persons (whether or
not directors or other managers of the corporation) who are accessories to the
commission of the executive liability offence or are otherwise concerned in,
or party to, the commission of the executive liability
offence.
(7)
In this section—
director has the same
meaning it has in the Corporations Act 2001 of the
Commonwealth.
reasonable steps, in
relation to the commission of an executive liability offence, includes, but is
not limited to, such action (if any) of the following kinds as is reasonable
in all the circumstances—
(a)
action towards—
(i)
assessing the corporation’s compliance with
the provision creating the executive liability offence,
and
(ii)
ensuring that the corporation arranged regular
professional assessments of its compliance with the
provision,
(b)
action towards ensuring that the
corporation’s employees, agents and contractors are provided with
information, training, instruction and supervision appropriate to them to
enable them to comply with the provision creating the executive liability
offence so far as the provision is relevant to them,
(c)
action towards ensuring that—
(i)
the plant, equipment and other resources,
and
(ii)
the structures, work systems and other
processes,
relevant to compliance with the provision creating the
executive liability offence are appropriate in all the
circumstances,
(d)
action towards creating and maintaining a
corporate culture that does not direct, encourage, tolerate or lead to
non-compliance with the provision creating the executive liability
offence.
ss 34B–34D: Ins
2018 No 78, Sch 1[35].
35Regulations
(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)
The regulations may, either unconditionally or
subject to conditions, exempt—
(a)
any specified person or class of persons,
or
(b)
any specified matter or class of
matters,
from the operation of this Act or of any specified
provision of this Act.
(3)
The commencement of a regulation referred to in
section 5, 6 or 7 does not affect the operation of this Act with respect to
construction work carried out, or related goods and services supplied, under a
construction contract entered into before that
commencement.
(4)
The regulations may—
(a)
prescribe information that is required to be
provided to a subcontractor when entering into a construction contract,
and
(b)
create offences punishable by a penalty not
exceeding 100 penalty units in relation to that requirement,
and
(c)
apply, adopt or incorporate any publication as in
force at a particular time or as in force from time to
time.
s 35: Am 2018 No 78,
Sch 1[36]; 2020 No 30, Sch 1.6[2].
36Disclosure of information
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 legal proceedings arising out
of this Act or for the purposes of a report of legal proceedings,
or
(d)
in accordance with a requirement imposed under
the Ombudsman Act 1974,
or
(e)
with other lawful
excuse.
Maximum penalty—100 penalty
units.
s 36: Rep 2003 No 82,
Sch 3. Ins 2013 No 93, Sch 1 [9]. Am 2016 No 55, Sch 1.6 [2]. Subst 2018 No
78, Sch 1[37].
36ADelegation
The Minister may delegate the exercise of any
function of the Minister under this Act (other than this power of delegation)
to—
(a)
the Secretary, or
(b)
a person employed in a Public Service agency
responsible to the Minister, or
(c)
a person, or a class of persons, authorised for
the purposes of this section by the regulations.
s 36A: Ins 2013 No
93, Sch 1 [9]. Subst 2018 No 78, Sch 1[37].
36B
s 36B: Ins 2013 No
93, Sch 1 [9]. Am 2016 No 55, Sch 1.6 [2]. Rep 2018 No 78, Sch
1[37].
37Savings and transitional provisions
Schedule 2 has effect.
38Review 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 3 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 3 months after the end of the period
of 3 years.
(4)
A further review of this Act (as amended by the
Building and Construction Industry Security of Payment
Amendment Act 2002) is to be undertaken by the Minister as
soon as possible after the period of 12 months from the commencement of
Schedule 1[29] to that Act.
(5)
A report on the outcome of the further review is
to be tabled in each House of Parliament within 3 months after the end of that
period of 12 months.
s 38: Am 2002 No 133,
Sch 1 [49].