Building and Construction Industry Security of Payment Amendment Regulation 2019 (NSW)

New South Wales

Building and Construction Industry Security

of Payment Amendment Regulation 2019

under the

Building and Construction Industry Security of Payment Act 1999

Her Excellency the Governor, with the advice of the Executive Council, has made the following

Regulation under the Building and Construction Industry Security of Payment Act 1999.

KEVIN ANDERSON, MP

Minister for Better Regulation and Innovation

Explanatory note

The objects of this Regulation are as follows:

(a) to exempt owner occupier construction contracts from the operation of the Building and

Construction Industry Security of Payment Act 1999 (the Act),

(b)	to specify the offences with respect to retention money trust accounts that are executive liability offences,
(c)	to specify the offences under the Act and the Building and Construction Industry Security of

Payment Regulation 2008 for which penalty notices may be issued and the amount of the penalty

payable.

This Regulation is made under the Building and Construction Industry Security of Payment Act 1999, including sections 7 (5), 34B (2) and (4), 34D (1) (b) (ii) and 35 (the general regulation-making power).

Building and Construction Industry Security of Payment Amendment Regulation 2019 [NSW]

Building and Construction Industry Security of Payment

Amendment Regulation 2019

under the

Building and Construction Industry Security of Payment Act 1999

1      Name of Regulation

This Regulation is the Building and Construction Industry Security of Payment

Amendment Regulation 2019.

2      Commencement

This Regulation commences on 21 October 2019 and is required to be published on the NSW legislation website.

Building and Construction Industry Security of Payment Amendment Regulation 2019 [NSW]

Schedule 1 Amendment of Building and Construction Industry Security of Payment Regulation 2008

Schedule 1	Amendment of Building and Construction
Industry Security of Payment Regulation 2008

[1]      Clause 3A

Insert after clause 3:

3A Application of Act

For the purposes of section 7 (5) of the Act, owner occupier construction contracts are prescribed as a class of construction contracts to which the Act does not apply.

[2]      Clause 5A

Insert after clause 5:

5A Executive liability offences

Section 34D of the Act applies to an offence against clause 6 (1), 8, 11, 12, 14,

15 (3) or 17.

Note. Section 34D of the Act provides for the personal liability of directors for certain

offences committed by a corporation.

[3]      Clause 20 Exemptions

Omit “a construction contract of a kind referred to in section 7 (2) (b)”.

Insert instead “an owner occupier construction contract”.

[4]      Schedule 3

Insert after Schedule 2:

Schedule 3 Penalty notice offences

For the purposes of section 34B of the Act:

(a)	each offence specified in this Schedule is an offence for which a penalty notice may be issued, and
(b)	the amount payable under any such penalty notice is the amount specified in this Schedule for the offence.

Column 1	Column 2	Column 3
Provision	Penalty for an individual	Penalty for a corporation

Offences under the Act

Section 13 (7)	$2,200	$11,000
Section 26A (5)	$1,100	$5,500
Section 26B (5)	$1,100	$5,500
Section 26D (3)	$1,100	$5,500
Section 26E (2)	$1,100	$5,500

Offences under this Regulation

Building and Construction Industry Security of Payment Amendment Regulation 2019 [NSW]

Schedule 1 Amendment of Building and Construction Industry Security of Payment Regulation 2008

Column 1	Column 2	Column 3
Provision	Penalty for an individual	Penalty for a corporation
Clause 8 (1) or (2)	$2,200	$11,000