Building Industry Fairness (Security of Payment) and Other Legislation Amendment Act 2020 (Qld)

The Parliament of Queensland enacts—

Part 1    Preliminary

1   Short title

This Act may be cited as the Building Industry Fairness (Security of Payment) and Other Legislation Amendment Act 2020.

2   Commencement

(1)Sections 115D and 115F are taken to have commenced on 1 January 2020.

(2)The following provisions commence on a day to be fixed by proclamation—

(a)parts 2 to 5;

(b)part 6, divisions 2 (other than sections 115A to 115F and section 125), 3 and 4;

(c)part 9;

(d)schedule 1.

(3)Also, section 125, to the extent it inserts new sections 80 to 82, commences on a day to be fixed by proclamation.

Part 2    Amendment of Architects Act 2002

3   Act amended

This part amends the Architects Act 2002.

Note—

See also the amendments in schedule 1.

4   Amendment of s 11 (Fitness to practise as an architect)

(1)Section 11—
insert—

(ba)if the applicant has been a member of an association of architects, whether in Australia or a foreign country, and the membership was suspended or cancelled—the reason for its suspension or cancellation;

(2)Section 11(c)—
omit, insert—

(c)an order about the applicant made under section 130 or 131 of this Act or section 80 of the repealed Act;

(ca)a proceeding taken against the applicant for a matter mentioned in section 36 under a law applying, or that applied, in the Commonwealth, another State or a foreign country;

(3)Section 11(e)—
omit, insert—

(e)if the applicant was required to undergo a health assessment—

(i)whether the applicant complied with the requirement; and

(ii)whether the applicant cooperated with the medical practitioner appointed to perform the assessment;

(ea)whether a health assessment report for the applicant states that the applicant is unable to competently and safely practise as an architect;

(eb)whether the board reasonably believes a materially false or misleading representation or document is included in the application;

(4)Section 11(ba) to (f)—
renumber as section 11(c) to (j).

5   Amendment of s 28 (Grounds for cancellation)

(1)Section 28(b) and (c)—
omit, insert—

(b)the architect is—

(i)affected by bankruptcy action; or

(ii)an executive officer of a corporation affected by control action; or

(2)Section 28—
insert—

(ea)an order about the architect is made under section 130 or 131; or

(eb)a proceeding is taken against the architect for a matter mentioned in section 36 under a law applying in the Commonwealth, another State or a foreign country; or

(ec)the architect is convicted of—

(i)an indictable offence; or

(ii)an offence against this Act; or

(iii)another offence, relating to the practice of architecture, against a law applying in the State, the Commonwealth, another State or a foreign country; or

(3)Section 28(g)—
omit, insert—

(i)the architect is required to undergo a health assessment and—

(i)the architect does not comply with the requirement; or

(ii)the architect does not cooperate with the medical practitioner appointed to perform the assessment; or

(j)a health assessment report for the architect states that the architect is unable to competently and safely practise as an architect.

(4)Section 28(d) to (f)—
renumber as section 28(c) to (h).

6   Amendment of s 29 (Procedure for cancellation)

(1)Section 29—
insert—

(2A)The board may also ask for more information by giving the architect a notice stating—

(a)the information sought; and

(b)the time, at least 21 days after the notice is given, by which the information is required.

(2)Section 29(3), ‘period,’—
omit, insert—

period and any requested information received by the stated time,

(3)Section 29(4), ‘subsection (3)’—
omit, insert—

subsection (4)

(4)Section 29(2A) to (5)—
renumber as section 29(3) to (6).

7   Amendment of s 29A (Immediate suspension of registration)

Section 29A(1)—
omit, insert—

(1)This section applies if the board reasonably believes—

(a)a ground exists to cancel an architect’s registration under section 28; and

(b)it is in the public interest to immediately suspend the architect’s registration.

8   Insertion of new s 31A

After section 31—
insert—

31A   Proof of giving false and misleading statements and documents

(1)This section applies to a proceeding for an offence against section 30 or 31.

(2)It is sufficient proof the statement was made, or the document was given, to the board to prove it was made or given to a person authorised to receive it.

(3)It does not matter whether the authorisation was a delegation, agency or any other form of authorisation by which someone acts through another.

9   Insertion of s 32AA

After section 32—
insert—

32AA    Notification of prescribed changes

(1)An architect must give notice to the board of a prescribed change for the architect within 21 days after the change, unless the architect has a reasonable excuse.

Maximum penalty—50 penalty units.

(2)In this section—

prescribed change, for an architect, means a change relating to a matter that the board may consider under section 11 when deciding whether a person is fit to practise as an architect.

10   Replacement of s 32A (Notification of disciplinary action by other bodies)

Section 32A—
omit, insert—

32A   Notification of disciplinary event by other bodies

(1)An architect must, within 21 days after a disciplinary event for the architect, give notice to the board of the disciplinary event, unless the architect has a reasonable excuse.

Maximum penalty—50 penalty units.

(2)In this section—

disciplinary event, for an architect, means a proceeding taken against the architect in relation to—

(a)the architect’s membership of an association of architects; or

(b)the architect’s registration to practise as an architect under a law applying in the Commonwealth, another State or a foreign country.

11   Insertion of new pt 2B

After section 35H—
insert—

Part 2B    Audits of architects

35I    Approved audit programs

(1)The board may approve a program (an approved audit program) to audit 1 or more architects.

(2)The purpose of the approved audit program is to find out if an architect to whom the program applies (an audited architect) has complied with—

(a)a code of practice approved under section 108; or

(b)part 7.

(3)The approved audit program must state all of the following—

(a)the purpose of the program;

(b)when the program starts and ends;

(c)the criteria used to select an architect for the program;

(d)who will carry out the program;

(e)any other matter relevant to carrying out the program.

35J   Power to require production of documents

(1)The board may, by notice given to an audited architect, require the audited architect to give the board a copy of, or access to, a document about a stated matter in the audited architect’s possession or control.

(2)The notice must require the copy of, or access to, the document to be given within a stated reasonable period and in a stated reasonable way.

(3)The audited architect must comply with the requirement, unless the audited architect has a reasonable excuse.

Maximum penalty—100 penalty units.

(4)For subsection (3), it is a reasonable excuse for the audited architect not to comply with the requirement if complying with the requirement might tend to incriminate the audited architect or expose the audited architect to a penalty.

12   Amendment of s 36 (Grounds for disciplining an architect)

Section 36—
insert—

(d)the architect has contravened an undertaking entered into by the architect and the board under section 73(2)(b);

(e)the architect has contravened a condition of the architect’s registration.

13   Amendment of s 50 (Issue of identity card)

Section 50(1), ‘appointed by it’—
omit.

14   Amendment of s 51 (Production or display of identity card)

Section 51—
insert—

(3)For subsection (1), an investigator does not exercise a power in relation to a person only because the inspector has entered a public place under section 62A(1)(b).

15   Replacement of s 55 (Power to require information or attendance)

Section 55—
omit, insert—

55   Power to require information or attendance

(1)For an investigation, the board or an investigator may, by notice given to a person, require the person to—

(a)give the board or investigator information related to the investigation by a stated reasonable time; or

(b)attend before the board or investigator at a stated reasonable time and place to answer questions, or produce documents, related to the investigation.

(2)For information that is an electronic document, compliance with the requirement requires the giving of a clear image or written version of the electronic document.

(3)In this section—

information includes a document.

Example of information—

architectural plans or drawings

16   Amendment of s 56 (Offences)

(1)Section 56, heading—
omit, insert—

56   Offence to contravene information or attendance requirement

(2)Section 56(1), from ‘required’ to ‘section 55’—
omit, insert—

of whom a requirement is made under section 55(1)(a)

(3)Section 56(2), from ‘given’ to ‘section 55’—
omit, insert—

of whom a requirement is made under section 55(1)(b)

(4)Section 56(3), after ‘the person’—
insert—

or expose the person to a penalty

17   Insertion of new pt 3, divs 7A to 7C

Part 3—
insert—

Division 7A Entry of places by investigators

Subdivision 1 Power to enter

62A   General power to enter places

(1)An investigator may enter a place if—

(a)an occupier at the place consents under subdivision 2 to the entry and section 62D has been complied with for the occupier; or

(b)it is a public place and the entry is made when the place is open to the public; or

(c)the entry is authorised under a warrant and, if there is an occupier of the place, section 62I has been complied with for the occupier.

(2)If the power to enter arose only because an occupier of the place consented to the entry, the power is subject to any conditions of the consent and ceases if the consent is withdrawn.

(3)If the power to enter is under a warrant, the power is subject to the terms of the warrant.

Subdivision 2 Entry by consent

62B   Application of subdivision

This subdivision applies if an investigator intends to ask an occupier of a place to consent to the investigator or another investigator entering the place under section 62A(1)(a).

62C   Incidental entry to ask for access

For the purpose of asking the occupier for the consent, an investigator may, without the occupier’s consent or a warrant—

(a)enter land around premises at the place to an extent that is reasonable to contact the occupier; or

(b)enter part of the place the investigator reasonably considers members of the public ordinarily are allowed to enter when they wish to contact an occupier of the place.

62D   Matters investigator must tell occupier

Before asking for the consent, the investigator must—

(a)explain to the occupier the purpose of the entry, including the powers intended to be exercised; and

(b)tell the occupier that—

(i)the occupier is not required to consent; and

(ii)the consent may be given subject to conditions and may be withdrawn at any time.

62E   Consent acknowledgement

(1)If the consent is given, the investigator may ask the occupier to sign an acknowledgement of the consent.

(2)The acknowledgement must state—

(a)the purpose of the entry, including the powers to be exercised; and

(b)that the occupier has been given an explanation about the purpose of the entry, including the powers intended to be exercised; and

(c)that the occupier has been told—

(i)that the occupier is not required to consent; and

(ii)that the consent may be given subject to conditions and may be withdrawn at any time; and

(d)that the occupier gives the investigator or another investigator consent to enter the place and exercise the powers; and

(e)the day and time the consent was given; and

(f)any conditions of the consent.

(3)If the occupier signs the acknowledgement, the investigator must immediately give a copy to the occupier.

(4)If—

(a)an issue arises in a proceeding about whether the occupier consented to the entry; and

(b)a signed acknowledgement complying with subsection (2) for the entry is not produced in evidence;

      the onus of proof is on the person relying on the lawfulness of the entry to prove the occupier consented.

Subdivision 3 Entry under warrant

62F   Application for warrant

(1)An investigator may apply to a magistrate for a warrant for a place.

(2)The investigator must prepare a written application that states the grounds on which the warrant is sought.

(3)The written application must be sworn.

(4)The magistrate may refuse to consider the application until the investigator gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

Example—

The magistrate may require additional information supporting the written application to be given by statutory declaration.

62G   Issue of warrant

(1)The magistrate may issue the warrant for the place only if the magistrate is satisfied there are reasonable grounds for suspecting there is at the place, or will be at the place within the next 7 days, a particular thing or activity that may provide evidence of an offence against this Act.

(2)The warrant must state—

(a)the place to which the warrant applies; and

(b)that a stated investigator or any investigator may with necessary and reasonable help and force—

(i)enter the place and any other place necessary for entry to the place; and

(ii)exercise the powers of an investigator; and

(c)particulars of the offence that the magistrate considers appropriate; and

(d)the name of the person suspected of having committed the offence unless the name is unknown or the magistrate considers it inappropriate to state the name; and

(e)the evidence that may be seized under the warrant; and

(f)the hours of the day or night when the place may be entered; and

(g)the magistrate’s name; and

(h)the day and time of the warrant’s issue; and

(i)the day, within 14 days after the warrant’s issue, the warrant ends.

62H   Defect in relation to a warrant

A warrant is not invalidated by a defect in—

(a)the warrant; or

(b)compliance with this subdivision;

unless the defect affects the substance of the warrant in a material particular.

62I   Entry procedure

(1)This section applies if an investigator named in a warrant issued under this subdivision for a place is intending to enter the place under the warrant.

(2)Before entering the place, the investigator must do or make a reasonable attempt to do the following things—

(a)identify himself or herself to a person present at the place who is an occupier of the place by producing the investigator’s identity card or another document evidencing the investigator’s appointment;

(b)give the person a copy of the warrant;

(c)tell the person the investigator is permitted by the warrant to enter the place;

(d)give the person an opportunity to allow the investigator immediate entry to the place without using force.

(3)However, the investigator need not comply with subsection (2) if the investigator believes on reasonable grounds that immediate entry to the place is required to ensure the effective execution of the warrant is not frustrated.

Division 7B General powers of investigators after entering places

62J   Application of division

(1)The powers under this division may be exercised if the investigator enters a place under section 62A.

(2)However, if an investigator enters a place to get the occupier’s consent to enter a place, this division applies to the investigator only if the consent is given or the entry is otherwise authorised.

62K   General powers

(1)The investigator may do any of the following (each a general power)—

(a)search any part of the place;

(b)inspect, examine or film any part of the place or anything at the place;

(c)take for examination a thing, or a sample of or from a thing, at the place;

(d)take an extract from, or copy, a document at the place, or take the document to another place to copy;

(e)take into or onto the place any person, equipment and materials the investigator reasonably requires for exercising a power under this division;

(f)remain at the place for the time necessary to achieve the purpose of the entry.

(2)The investigator may take a necessary step to allow the exercise of a general power.

(3)If the investigator takes a document from the place to copy it, the investigator must copy the document and return it to the place as soon as practicable.

(4)If the investigator takes from the place an article or device reasonably capable of producing a document from an electronic document to produce the document, the investigator must produce the document and return the article or device to the place as soon as practicable.

(5)In this section—

examine includes analyse, test, account, measure, weigh, grade, gauge and identify.

film includes photograph, videotape and record an image in another way.

inspect, a thing, includes open the thing and examine its contents.

62L   Power to require reasonable help

(1)The investigator may make a requirement (a help requirement) of an occupier of the place or a person at the place to give the investigator reasonable help to exercise a general power, including, for example, to produce a document or to give information.

(2)When making the help requirement, the investigator must give the person an offence warning for the requirement.

62M   Offence to contravene help requirement

(1)A person of whom a help requirement has been made must comply with the requirement unless the person has a reasonable excuse.

Maximum penalty—50 penalty units.

(2)It is a reasonable excuse for an individual not to comply with a help requirement if complying might tend to incriminate the individual or expose the individual to a penalty.

Division 7C Power to seize evidence

62N   Seizing evidence at a public place that may be entered without consent or warrant

(1)This section applies if an investigator enters a public place.

(2)The investigator may seize a thing at the public place if the investigator reasonably believes the thing is evidence of an offence against this Act.

62O   Seizing evidence at a place that may only be entered with consent or warrant

(1)This section applies if—

(a)an investigator is authorised to enter a place under this part only with the consent of the occupier of the place or a warrant; and

(b)the investigator enters the place after obtaining the necessary consent or warrant.

(2)If the investigator enters the place with the occupier’s consent, the investigator may seize a thing at the place if—

(a)the investigator reasonably believes the thing is evidence of an offence under this Act; and

(b)seizure of the thing is consistent with the purpose of entry as explained to the occupier when asking for the occupier’s consent.

(3)If the investigator enters the place under a warrant, the investigator may seize the evidence for which the warrant was issued.

(4)The investigator may also seize anything else at the place if the investigator reasonably believes—

(a)the thing is evidence of an offence against this Act; and

(b)the seizure is necessary to prevent the thing being hidden, lost or destroyed.

62P   Power to secure seized thing

(1)Having seized a thing under this division, an investigator may—

(a)leave it at the place where it was seized (the place of seizure) and take reasonable action to restrict access to it; or

(b)move the thing from the place of seizure.

(2)For subsection (1)(a), the investigator may, for example—

(a)seal the thing, or the entrance to the place of seizure, and mark the thing or place to show access to the thing or place is restricted; or

(b)for equipment—make it inoperable; or

(c)require a person the investigator reasonably believes is in control of the place or thing to do an act mentioned in paragraph (a) or (b) or anything else an investigator could do under subsection (1)(a).

62Q   Offence to contravene seizure requirement

A person must comply with a requirement made of the person under section 62P(2)(c) unless the person has a reasonable excuse.

Maximum penalty—50 penalty units.

62R   Offence to interfere

(1)If access to a seized thing is restricted under section 62P, a person must not tamper with the thing or with anything used to restrict access to the thing without—

(a)an investigator’s approval; or

(b)a reasonable excuse.

Maximum penalty—50 penalty units.

(2)If access to a place is restricted under section 62P, a person must not enter the place in contravention of the restriction or tamper with anything used to restrict access to the place without—

(a)an investigator’s approval; or

(b)a reasonable excuse.

Maximum penalty—50 penalty units.

62S   Receipt and information notice for seized thing

(1)This section applies if an investigator seizes anything under this division unless—

(a)the investigator reasonably believes there is no-one apparently in possession of the thing or it has been abandoned; or

(b)because of the condition, nature and value of the thing it would be unreasonable to require the investigator to comply with this section.

(2)The investigator must, as soon as practicable after seizing the thing, give an owner or person in control of the thing before it was seized—

(a)a receipt for the thing that generally describes the thing and its condition; and

(b)an information notice about the decision to seize it.

(3)However, if an owner or person from whom the thing is seized is not present when it is seized, the receipt and information notice may be given by leaving them in a conspicuous position and in a reasonably secure way at the place at which the thing is seized.

(4)The receipt and information notice may—

(a)be given in the same document; and

(b)relate to more than 1 seized thing.

(5)The investigator may delay giving the receipt and information notice if the investigator reasonably suspects giving them may frustrate or otherwise hinder an investigation by the investigator under this part.

(6)However, the delay may be only for so long as the investigator continues to have the reasonable suspicion and remains in the vicinity of the place at which the thing was seized to keep it under observation.

62T   Access to seized thing

(1)Until a seized thing is forfeited or returned, the investigator who seized the thing must allow an owner of the thing—

(a)to inspect it at any reasonable time and from time to time; and

(b)if it is a document—to copy it.

(2)Subsection (1) does not apply if it is impracticable or would be unreasonable to allow the inspection or copying.

(3)The inspection or copying must be allowed free of charge.

62U   Return of seized things

(1)If a seized thing is not forfeited, the investigator must return it to its owner—

(a)at the end of 1 year; or

(b)if proceedings involving the thing are started within 1 year, at the end of the proceedings and any appeal from the proceedings.

(2)Despite subsection (1), unless a thing that has been seized as evidence is forfeited, the investigator must immediately return it to its owner if the investigator stops being satisfied its continued retention as evidence is necessary.

62V   Forfeiture of seized things

(1)The board may decide a thing that has been seized under this division is forfeited to the board if the board or an investigator—

(a)after making reasonable inquiries, can not find an owner; or

(b)after making reasonable efforts, can not return it to an owner; or

(c)reasonably believes it is necessary to keep the thing to prevent it being used to commit the offence for which it was seized.

(2)However, for subsection (1)(a) and (b), the board or investigator is not required to—

(a)make inquiries if it would be unreasonable to make inquiries to find an owner; or

(b)make efforts if it would be unreasonable to make efforts to return the thing to an owner.

Example for paragraph (b)—

The owner of the thing has migrated to another country.

(3)Regard must be had to the thing’s condition, nature and value in deciding—

(a)whether it is reasonable to make inquiries or efforts; and

(b)if inquiries or efforts are made—what inquiries or efforts, including the period over which they are made, are reasonable.

62W    Information notice about forfeiture decision

(1)If the board decides under section 62V(1) to forfeit a seized thing, the board must as soon as practicable give a person who owned the thing immediately before the forfeiture (the former owner) an information notice about the decision.

(2)If the decision was made under section 62V(1)(a) or (b), the information notice may be given by leaving it at the place where the seized thing was seized, in a conspicuous position and in a reasonably secure way.

(3)The information notice must state that the former owner may apply for a stay of the decision if he or she applies to the tribunal for a review of the decision.

(4)However, subsections (1) to (3) do not apply if—

(a)the decision was made under section 62V(1)(a) or (b); and

(b)the place where the seized thing was seized is—

(i)a public place; or

(ii)a place where the notice is unlikely to be read by the former owner.

62X    When thing becomes property of the board

A thing becomes the property of the board if the thing is forfeited to the board under section 62V.

62Y   How property may be dealt with

(1)This section applies if, under section 62X, a thing becomes the property of the board.

(2)The board may deal with the thing as the board considers appropriate, including, for example, by destroying it or giving it away.

(3)The board must not deal with the thing in a way that could prejudice the outcome of an appeal against the forfeiture under this part.

(4)If the board sells the thing, the board must, after deducting the costs of the sale, make reasonable efforts to return the proceeds of the sale to the former owner of the thing.

18   Amendment of s 73 (Board’s decision on investigation about architects)

Section 73(2)(d), from ‘condition,’ to ‘architect,’—
omit, insert—

condition

19   Amendment of s 75 (Board’s decision about other investigations)

Section 75(2)(b), after ‘conduct’—
insert—

, including, for example, to submit to an audit of the services carried out by the person

20   Amendment of s 80 (Functions of board)

(1)Section 80—
insert—

(ca)to approve a program to audit architects under part 2B;

(2)Section 80(i), ‘(h)’—
omit, insert—

(i)

(3)Section 80(ca) to (i)—
renumber as section 80(d) to (j).

21   Replacement of s 90 (Report about person’s criminal history)

Section 90—
omit, insert—

90   Criminal history reports

(1)The chief executive may make inquiries about a person to help decide whether the person—

(a)is suitable for appointment as a member of the board under section 82(2); or

(b)is suitable to act in the office of a member under section 88(2); or

(c)has a conviction for an offence mentioned in section 86(1)(b).

(2)Without limiting subsection (1), the chief executive may ask the police commissioner for—

(a)a report about the person’s criminal history; and

(b)a brief description of the nature of the offence giving rise to a conviction mentioned in the person’s criminal history.

(3)However, the chief executive may make a request under subsection (2) about a person only if the person has given the chief executive written consent for the request.

(4)The police commissioner must comply with the request.

(5)The duty imposed on the police commissioner applies only to information in the commissioner’s possession or to which the commissioner has access.

22   Amendment of s 102 (Keeping register)

(1)Section 102(3)(e), ‘section 29(3)’—
omit, insert—

section 29(4)

(2)Section 102(3)—
insert—

(ga)whether the person is registered as a practising architect or non-practising architect;

(3)Section 102(3)(ga) and (h)—
renumber as section 102(3)(h) and (i).

23   Insertion of new s 107A

After section 107—
insert—

107A    Delegation

(1)The board may delegate the board’s functions under this Act to any of the following—

(a)a board member;

(b)a committee of board members;

(c)the registrar;

(d)an appropriately qualified employee of the board;

(e)an appropriately qualified public service employee providing services for the board under section 100A.

(2)In this section—

functions includes powers.

24   Amendment of s 115 (Claims about provision of architectural services)

Section 115(2), ‘an architect’—
omit, insert—

a practising architect

25   Amendment of s 116 (Providing information about architects)

(1)Section 116(2), ‘architect’—
omit, insert—

practising architect

(2)Section 116(3), from ‘an architect’ to ‘other architect’—
omit, insert—

a practising architect under subsection (2), the person also must inform the other person of the name and contact details of any other practising architect

26   Amendment of s 117 (Information on correspondence about architectural services)

Section 117(2), ‘architect’—
omit, insert—

practising architect

27   Amendment of s 121 (Review of particular decisions)

(1)Section 121(2)(c), ‘section 29(3)’—
omit, insert—

section 29(4)

(2)Section 121(2)—
insert—

(ca)a person who has been given, or is entitled to be given, an information notice about a decision to forfeit a seized thing under section 62W;

(da)a person whose registration is subject to a condition imposed under section 73(2)(d);

(3)Section 121(2)(ca) to (e)—
renumber as section 121(2)(d) to (g).

28   Replacement of s 138 (Summary proceedings for offences)

Section 138—
omit, insert—

138   Proceedings for offences

(1)A proceeding for an offence against this Act is to be heard and decided summarily.

(2)The proceeding must start—

(a)within 1 year after the commission of the offence; or

(b)within 1 year after the offence comes to the complainant’s knowledge, but within 2 years after the commission of the offence.

29   Insertion of new s 141B

After section 141A—
insert—

141B    Statutory declarations to verify information required under the Act

(1)This section applies if a person is required under this Act to give information to the board.

(2)The board may ask the person to verify the information by statutory declaration.

(3)If the person gives the information to the board but does not comply with a request under subsection (2), the person is taken to have not given the information to the board.

30   Insertion of new pt 11, div 4

Part 11—
insert—

Division 4 Transitional provision for Building Industry Fairness (Security of Payment) and Other Legislation Amendment Act 2020

168   Continued limitation of time for particular summary proceedings

(1)This section applies if, immediately before the commencement, a proceeding for an offence against this Act could not be started because of the pre-amended Act, section 138(2).

(2)The pre-amended Act, section 138(2) continues to apply to a proceeding for the offence.

(3)In this section—

pre-amended Act means this Act as in force immediately before the commencement.

31   Amendment of sch 2 (Dictionary)

(1)Schedule 2, definitions criminal history and investigator—
omit.

(2)Schedule 2—
insert—

approved audit program, for part 2B, see section 35I(1).

audited architect, for part 2B, see section 35I(2).

criminal history, of a person, means the person’s criminal history within the meaning of the Criminal Law (Rehabilitation of Offenders Act 1986, other than spent convictions.

electronic document means a document of a type under the Acts Interpretation Act 1954, schedule 1, definition document, paragraph (c).

former owner see section 62W(1).

general power see section 62K(1).

help requirement see section 62L(1).

identity card means an identity card issued under section 50.

investigator means—

(a)a person appointed as an investigator under section 48(1); or

(b)a member nominated by the board to conduct an investigation mentioned in section 80(c).

occupier, of a place, includes the following—

(a)if there is more than 1 person who apparently occupies the place—any 1 of the persons;

(b)any person at the place who is apparently acting with the authority of a person who apparently occupies the place;

(c)if no-one apparently occupies the place—any person who is an owner of the place.

of, a place, includes at or on the place.

owner, of a thing that has been seized under part 3, division 7C, includes a person who would be entitled to possession of the thing had it not been seized.

place includes the following—

(a)premises;

(b)vacant land;

(c)a place in Queensland waters;

(d)a place held under more than 1 title or by more than 1 owner;

(e)the land or water on or in which a building or other structure, or a group of buildings or other structures, is situated.

premises includes—

(a)a building or other structure; and

(b)a part of a building or other structure; and

(c)a caravan or vehicle; and

(d)premises held under more than 1 title or by more than 1 owner.

public place means a place, or part of a place—

(a)that the public is entitled to use, that is open to members of the public or that is used by the public, whether or not on payment of money; or

(b)the occupier of which allows, whether or not on payment of money, members of the public to enter.

police commissioner means the commissioner of the police service.

vehicle—

(a)means a vehicle under the Transport Operations (Road Use Management) Act 1995; and

(b)includes a vessel under that Act.

Part 3    Amendment of Building Act 1975

32   Act amended

This part amends the Building Act 1975.

Note—

See also the amendments in schedule 1.

33   Replacement of s 12 (What is the Building Code of Australia (or BCA))

Section 12—
omit, insert—

12   What is the Building Code of Australia (or BCA)

(1)The Building Code of Australia (or BCA) is the document called ‘National Construction Code’, volume 1 and volume 2 (including the Queensland Appendixes) published by the entity known as the Australian Building Codes Board (the board).

(2)The reference to the document called ‘National Construction Code’ in subsection (1) includes the edition of the code as amended from time to time by amendments published by the board.

34   Replacement of s 13 (What is the Queensland Development Code (or QDC))

Section 13—
omit, insert—

13   What is the Queensland Development Code (or QDC)

(1)The Queensland Development Code (or QDC) is the parts, or aspects of the parts, of the document called ‘Queensland Development Code’ that are prescribed by regulation.

(2)A regulation made under this section must state the day on which the part or aspect of the part takes effect.

(3)The chief executive must publish the Queensland Development Code on the department’s website.

35   Amendment of s 21 (Building work that is accepted development for the Planning Act)

Section 21(5), definition relevant provisions, paragraph (a)(ii), ‘boundary clearance and site cover’—
omit, insert—

residential design and siting

36   Amendment of s 33 (Alternative provisions to QDC boundary clearance and site cover provisions for particular buildings)

(1)Section 33, heading, ‘boundary clearance and site cover’—
omit, insert—

residential design and siting

(2)Section 33(1)(b), ‘single detached class 1’—
omit, insert—

relevant

(3)Section 33(2) and (4), ‘boundary clearance and site cover’—
omit, insert—

residential design and siting

(4)Section 33(6)—
insert—

relevant building means a building that is—

(a)a single detached class 1 building; or

(b)a building of a class and type prescribed by regulation.

37   Amendment of s 37 (Provision for changes to building assessment provisions)

Section 37—
insert—

(5)A regulation may provide the following, to the extent stated in the regulation—

(a)subsection (2) does not apply in relation to the building work for an amendment of a building assessment provision;

(b)a building development approval for the building work may be given only if the approval is given under the building assessment provisions as amended.

(6)The Minister may recommend to the Governor in Council the making of a regulation under subsection (5) only if—

(a)the Minister has conducted an impact assessment of the making of the regulation; and

(b)the Minister is satisfied the regulation is necessary to reduce or remove a risk of serious injury or illness to an individual having regard to—

(i)the impact assessment; and

(ii)if the regulation is not made, any other way to manage the risk.

38   Amendment of s 49 (Functions of private certifier (class B))

Section 49(b), ‘boundary clearance and site cover’—
omit, insert—

residential design and siting

39   Amendment of s 50 (Restrictions on building certifying functions that a private certifier (class B) can perform)

Section 50(2), ‘boundary clearance and site cover’—
omit, insert—

residential design and siting

40   Amendment of s 61 (Alterations to safe existing work may be approved on basis of earlier building assessment provisions)

Section 61—
insert—

(2A)However, subsection (2) does not apply to the extent a regulation mentioned in section 37(5) states an amendment of a building assessment provision does not apply and the approval must be given under the building assessment provisions as amended.

41   Insertion of new s 124A

After section 124—
insert—

124A    Obligation to give owner inspection documentation for particular inspections

(1)This section applies if, at any time before the inspection of the final stage of assessable building work—

(a)the building certifier has performed an inspection of an earlier stage of the work; and

(b)the building certifier is satisfied that the stage of the work complies with the building development approval; and

(c)the building certifier gives a certificate in the approved form to certify the stage of the work.

(2)The owner of the building may, by notice given to the building certifier, ask for a copy of any inspection documentation for the inspection performed by the building certifier.

(3)The building certifier must, within 5 business days after receiving the notice, give the owner all the inspection documentation under subsection (2), unless the certifier has a reasonable excuse.

Maximum penalty—20 penalty units.

42   Amendment of s 127 (Building certifier’s duty to act in public interest in performing building certifying function)

Section 127—
insert—

(3)The duty to act in the public interest, when performing a building certifying function, prevails to the extent of any inconsistency with any other obligation under this Act or to another person.

(4)The duty to act in the public interest is taken not to create a conflict of interest under section 128.

43   Amendment of s 136 (Offence for private certifier not to act in public interest in performing private certifying function)

Section 136—
insert—

(3)The duty to act in the public interest, when performing a private certifying function, prevails to the extent of any inconsistency with any other obligation under this Act or to another person.

(4)The duty to act in the public interest is taken not to create a conflict of interest under section 137.

44   Replacement of s 143 (Notice of engagement to local government)

Section 143—
omit, insert—

143   Notice of engagement—owner clients

(1)This section applies if—

(a)a private certifier is engaged by a client to perform private certifying functions for a building or building assessment work; and

(b)the owner of the building is the client or the applicant under the relevant building development application.

(2)The private certifier must, within 5 business days after the engagement starts, give notice of the engagement to the local government, unless the certifier has a reasonable excuse.

Maximum penalty—40 penalty units.

143A    Notice of engagement and contact details—other clients

(1)This section applies if—

(a)a private certifier is engaged by a client to perform private certifying functions for a building or building assessment work; and

(b)the owner of the building is not the client or the applicant under the relevant building development application.

(2)The client must, within 10 business days after the engagement starts, give the private certifier the owner’s name and contact details, unless the client has a reasonable excuse.

Maximum penalty—20 penalty units.

(3)The private certifier must, within 15 business days after the engagement starts, give the owner notice of the following, unless the certifier has a reasonable excuse—

(a)the private certifier’s name; and

(b)the details, in an approved form, of the responsibilities of the private certifier performing the work.

Maximum penalty—40 penalty units.

(4)The private certifier must, within 15 business days after the engagement starts, give notice of the engagement to the local government, unless the certifier has a reasonable excuse.

Maximum penalty—40 penalty units.

(5)Within 5 business days after becoming aware of a change in the owner’s name or contact details, the client must give notice of the change to the private certifier, unless the client has a reasonable excuse.

Maximum penalty—20 penalty units.

143B    Owner may require performance of additional certifying functions

(1)This section applies if—

(a)a building certifier is, or was, engaged by a client to perform certifying functions for a building; and

(b)the owner of the building is not the client.

(2)The owner may by notice (an additional certification notice) given to the client, direct the client to ask the building certifier to perform a certifying function.

(3)An additional certification notice must—

(a)be given to the client within 10 business days of the owner receiving a notice under section 143A(3); and

(b)state the following—

(i)the details of the certifying function to be performed by the building certifier;

(ii)that the client must give a copy of the additional certification notice to the building certifier within 5 business days after receiving the notice.

(4)The client must give a copy of the additional certification notice to the building certifier within 5 business days after receiving the notice, unless the client has a reasonable excuse.

Maximum penalty—20 penalty units.

(5)The building certifier must perform the certifying function stated in the additional certification notice on or before the agreed day, unless the certifier has a reasonable excuse.

Maximum penalty—40 penalty units.

(6)Also, the building certifier must give the owner and client, within 5 business days after performing the certifying function, copies of all documents relevant to that function, unless the certifier has a reasonable excuse.

Maximum penalty—20 penalty units.

(7)The agreed day, or an agreement to determine the agreed day, must be decided within 10 business days after the day (the relevant day) the client gives a copy of the additional certification notice to the building certifier.

(8)If the agreed day or agreement is not decided under subsection (7), the building certifier must—

(a)nominate a day, or a way to determine the agreed day, within 15 business days after the relevant day; and

(b)tell the client and owner which day is nominated as the agreed day or the way the agreed day is to be determined.

(9)Subsections (5) and (6) do not apply to the building certifier if, before the following times, the owner tells the certifier that the additional certification notice is withdrawn—

(a)the agreed day or agreement is decided under subsection (7);

(b)the agreed day is nominated under subsection (8).

(10)The owner is liable for the reasonable costs of the performance of a certifying function by the building certifier under the additional certification notice.

(11)In this section—

agreed day, for performing a certifying function under subsection (5), means—

(a)the day agreed to by, or worked out under an agreement between, all of the following—

(i)the client;

(ii)the building certifier;

(iii)the owner;

(iv)if the client is not the builder of the building work the subject of the certifying function—the builder; or

(b)the day nominated by the building certifier under subsection (8).

builder means the person who will be carrying out the building work the subject of the certifying function.

certifying function, for a building certifier, means a building certifying function relating to compliance of a building with the BCA or QDC.

45   Amendment of s 150 (Obligation to keep inspection documentation)

Section 150, ‘5 years’—
omit, insert—

7 years

46   Amendment of s 155 (Who may apply)

(1)Section 155(1), from ‘the individual’—
omit, insert—

the individual—

(a)holds a current accreditation issued by an accreditation standards body; or

(b)has the qualifications and experience prescribed by regulation.

(2)Section 155(2)(a)—
omit, insert—

(a)the individual—

(i)holds a current accreditation issued by an accreditation standards body; or

(ii)has the qualifications and experience prescribed by regulation; and

47   Amendment of s 156 (Requirements for licence application)

Section 156(c)(iv)—
omit, insert—

(iv)for the level of licence applied for—

(i)a copy of the applicant’s certificate of accreditation from an accreditation standards body; or

(ii)evidence of the qualifications and experience the applicant is required to have for the level.

48   Amendment of s 167 (Applying for renewal)

Section 167(3)(c)—
omit, insert—

(c)for the level of licence applied for, evidence that the applicant—

(i)continues to hold accreditation from an accreditation standards body; or

(ii)has the qualifications and experience the applicant is required to have for the level; and

49   Amendment of s 171 (Power to amend, cancel or suspend licence)

Section 171(1)—
insert—

Note—

QBCC is required to cancel a building certifier’s licence if the building certifier becomes a disqualified individual—see section 214K.

50   Amendment of s 172 (Power to change licence level)

Section 172(1), from ‘no longer’ to ‘standards body’—
omit, insert—

does not hold accreditation from an accreditation standards body, and does not have qualifications and experience prescribed under section 155,

51   Amendment of s 179 (Register of building certifiers)

(1)Section 179(3)(d)(ii), from ‘if’ to ‘conduct—’—
omit.

(2)Section 179(3)—
insert—

(f)any demerit points allocated to the building certifier, the demerit offences for which they were allocated and the dates the points took effect;

(g)if the building certifier has been a disqualified individual—details of the circumstances that led to the disqualification.

(3)Section 179—
insert—

(3A)However, QBCC may decide not to record, under subsection (3)(d), particulars about unsatisfactory conduct engaged in by a building certifier if QBCC is satisfied the conduct has not—

(a)compromised the health and safety of a person; or

(b)had a direct detrimental impact on another person, including, for example, a client or owner of a building for whom building certifying functions or private certifying functions are performed.

52   Replacement of s 184 (Accreditation standards bodies)

Section 184—
omit, insert—

184   Accreditation standards bodies

(1)An accreditation standards body is an entity prescribed by regulation to be an accreditation standards body.

(2)An entity may be prescribed under subsection (1) only if it has identifiable competence and expertise in issuing accreditation to building certifiers.

53   Amendment of s 185 (Function of accreditation standards body)

(1)Section 185(2)—
insert—

(d)submit the body’s educational and experiential standards and professional development scheme to the chief executive for review at least once every 5 years from the day the standards or scheme was first approved by the chief executive; and

(e)if, on a review mentioned in paragraph (d), the chief executive directs the body to make stated changes to the body’s educational and experiential standards or professional development scheme—make the stated changes; and

(f)if the body’s educational and experiential standards or professional development scheme are amended other than as mentioned in paragraph (e) or for a minor or technical change—submit the amended standards or scheme to the chief executive for approval.

(2)Section 185—
insert—

(2A)An accreditation standards body must publish, on its website, a copy of its current educational and experiential standards and professional development scheme.

(3)Section 185(2A) and (3)—
renumber as section 185(3) and (4).

54   Amendment of s 186 (Criteria for deciding suitability of applicants and licensees)

(1)Section 186(2)—
insert—

(fa)if the applicant or holder does not hold a current accreditation issued by an accreditation standards body—whether the applicant or holder has qualifications and experience prescribed under section 155;

(fb)whether the applicant or holder is a disqualified individual;

(2)Section 186—
insert—

(3)A person is not a suitable person to hold a licence if the person is a disqualified individual.

55   Amendment of s 190 (Making a complaint against a building certifier)

(1)Section 190—
insert—

(2A)A complaint about conduct of a building certifier may only be made before the cut-off day, unless the certifier’s conduct has or may have caused significant financial loss or other serious harm.

(2)Section 190(4)—
omit, insert—

(4)QBCC may dismiss any complaint without taking further action under this division if—

(a)QBCC has asked for further particulars under subsection (3) and the further particulars are not given or are not verified by statutory declaration; or

(b)QBCC is satisfied the complaint—

(i)is frivolous or vexatious; or

(ii)lacks substance or credibility.

(3)Section 190—
insert—

(6)In this section—

cut-off day, for making a complaint about conduct of a building certifier, means—

(a)for conduct relating to certification of building work the subject of a building development approval, 7 years after—

(i)a certificate of occupancy or final inspection certificate is issued for the building work; or

(ii)if the building development approval lapses before a certificate of occupancy or final inspection certificate is issued for the building work—the building development approval lapses; or

(b)for conduct relating to building work for which a building development application has been made to which paragraph (a) does not apply, 1 year after—

(i)a private certifier is engaged for the application; or

(ii)if a private certifier is not engaged for the application—the application is received by the local government; or

(c)otherwise—1 year after the complainant becomes aware of the conduct.

56   Insertion of new ch 6, pt 5

Chapter 6—
insert—

Part 5    Disqualified individuals

Division 1 Preliminary

214A    Definitions for part

In this part—

accumulate—

If a demerit point is allocated to a person, the person is taken to have accumulated the demerit point at the time it took effect under section 214F.

conviction, of a person for a demerit offence, includes the following in relation to the offence—

(a)a court finding the person guilty or accepting the person’s plea of guilty, whether or not a conviction is recorded;

(b)the person paying a fine under an infringement notice, in full;

(c)the person paying the first instalment of a fine under an infringement notice;

(d)the registration by the registrar of a default certificate for an infringement notice given to the person.

default certificate see the State Penalties Enforcement Act 1999, schedule 2.

demerit offence means an offence against a provision of this Act prescribed by regulation.

demerit point means a demerit point allocated by QBCC under this part for a conviction for a demerit offence.

disqualification notice see section 214K(2).

disqualified individual see section 214B.

infringement notice see the State Penalties Enforcement Act 1999, schedule 2.

registrar see the State Penalties Enforcement Act 1999, schedule 2.

214B    Disqualified individual

A person is a disqualified individual if—

(a)the person has been given a disqualification notice; and

(b)the person’s period of disqualification under section 214L has not ended.

214C    When period of 3 years starts

(1)This section applies to QBCC in deciding whether a person has accumulated 30 demerit points within a period of 3 years.

(2)If the person has previously been given 1 or more disqualification notices, the period mentioned in subsection (1) must start at a time after the most recent disqualification notice was given to the person.

214D    Operation of part

This part has effect despite anything in part 3.

Division 2 Calculation of demerit points

214E    Demerit points for demerit offences

(1)This section applies in relation to a person who has a conviction for a demerit offence.

(2)QBCC must allocate to the person the number of demerit points prescribed by regulation for the offence.

(3)A regulation may prescribe up to 10 demerit points for a particular offence.

(4)This section is subject to section 214G.

214F    When demerit points are allocated and take effect

(1)QBCC must allocate demerit points to a person for a conviction for a demerit offence as soon as practicable after the points take effect.

(2)Demerit points for a conviction for a demerit offence take effect—

(a)if a court finds the person guilty—on the day after the last day on which the person may appeal the finding; or

(b)if a court accepts the person’s plea of guilty—on the day the plea is accepted; or

(c)if the person pays the fine under an infringement notice in full—on the day the fine is paid; or

(d)if the person applies to the administering authority to pay the fine under an infringement notice by instalments—on the day the administering authority receives the first instalment; or

(e)if the administering authority gives a default certificate to SPER for registration—on the day the default certificate is registered.

(3)However, if a conviction for a demerit offence is appealed, demerit points for the conviction must not be allocated until the appeal is finally dealt with or withdrawn.

(4)Also, if a conviction for a demerit offence is appealed and after the appeal there is no conviction, demerit points stop having effect.

(5)In this section—

administering authority see the State Penalties Enforcement Act 1999, schedule 2.

SPER see the State Penalties Enforcement Act 1999, schedule 2.

214G    Limit on demerit points from single investigation or audit

(1)This section applies if a person is convicted of 2 or more demerit offences discovered by QBCC as a result of an investigation or audit under part 4.

(2)The maximum demerit points that may be allocated to the person for the convictions for the demerit offences is 20.

(3)Nothing in this section prevents more demerit points being allocated to the person for convictions for demerit offences discovered by QBCC as a result of a later investigation or audit under part 4.

(4)However, more demerit points must not be allocated if—

(a)an earlier investigation or audit and a later investigation or audit relate to the same complaint or information received by QBCC from the same source; or

(b)for demerit offences discovered by QBCC as a result of a later investigation or audit—

(i)the offences were committed before an earlier investigation or audit but were not discovered as a result of the earlier investigation or audit; and

(ii)other demerit offences were discovered by QBCC as a result of the earlier investigation or audit; and

(iii)the other demerit offences resulted in the allocation of demerit points.

214H    QBCC must notify person about demerit points

(1)This section applies if QBCC allocates demerit points to a person.

(2)QBCC must, as soon as practicable after the demerit points are allocated, give the person notice of—

(a)the number of demerit points allocated; and

(b)the demerit offences for which the points were allocated; and

(c)the date the points took effect.

Division 3 Disqualification

214I    Procedure if QBCC considers person has accumulated 30 demerit points

(1)This section applies if QBCC considers that a person has accumulated 30 demerit points in a period of 3 years.

(2)QBCC must give the person a notice stating—

(a)details of the demerit offences for which the demerit points have accumulated and the dates the points took effect; and

(b)the effect of the person becoming a disqualified individual for accumulating 30 demerit points in a period of 3 years; and

(c)an invitation to the person to make written submissions, within a stated period, to satisfy QBCC that the person has not accumulated 30 demerit points in a period of 3 years.

(3)The stated period must be at least 28 business days after the notice is given to the person.

(4)QBCC must consider any submissions made by the person within the stated period.

214J    Ending procedure without further action

(1)This section applies if, after considering submissions made by the person, QBCC is satisfied the person has not accumulated 30 demerit points in a period of 3 years.

(2)QBCC must, as soon as practicable, advise the person in writing that no further action under this part will be taken in relation to the notice given under section 214I(2).

214K    Notice of disqualification

(1)This section applies if—

(a)after considering submissions made by the person, QBCC still considers the person has accumulated 30 demerit points in a period of 3 years; or

(b)the person did not make any submissions.

(2)QBCC must, by notice (a disqualification notice) given to the person—

(a)inform the person that—

(i)QBCC considers the person has accumulated 30 demerit points in a period of 3 years; and

(ii)the person is a disqualified individual for the period applying under section 214L and stated in the notice; and

(b)if the person holds a building certifier’s licence—cancel the person’s licence.

(3)The disqualification notice must be an information notice.

(4)To remove any doubt, it is declared that part 3, division 5 does not apply to a cancellation under subsection (2).

214L    Period of disqualification

(1)This section applies to a person who is given a disqualification notice.

(2)The person is a disqualified individual for the period decided by QBCC (the period of disqualification) that is not longer than—

(a)if, within the last 10 years, a previous disqualification notice was given to the person—3 years; or

(b)otherwise—1 year.

(3)For subsection (2)(a), a previous notice must not be counted if—

(a)the previous notice was given more than 10 years before the notice mentioned in subsection (1); or

(b)QBCC’s decision under the previous notice was reversed or annulled on review by an internal review or the tribunal under the QBCC Act, part 7, division 3.

57   Insertion of new ch 11, pt 21

Chapter 11—
insert—

Part 21    Transitional provisions for Building Industry Fairness (Security of Payment) and Other Legislation Amendment Act 2020

347   Definitions for part

In this part—

new, for a provision, means the provision as in force from the commencement.

previous, for a provision, means the provision as in force from time to time before the commencement.

348   Section 124A does not apply to building certifier engaged before commencement

Section 124A does not apply to a building certifier in relation to inspection documentation for building work if the building certifier was engaged to inspect the building work before the commencement.

349   Application of s 143B for owner of building

Section 143B applies in relation to the owner of a building only if the building certifier mentioned in section 143B(1)(a) for the building is engaged by the client on or after the commencement.

350   Application of s 185 to existing educational and experiential standards

For section 185(2)(d), an educational and experiential standard and professional development scheme in force on the commencement is taken to have been first approved by the chief executive on the commencement.

351   Application of disqualified person provisions

For new chapter 6, part 5, demerit points do not take effect for convictions for demerit offences committed before the commencement.

352   Existing certificates of classification

(1)This section applies to a certificate of classification in force immediately before the commencement.

(2)The certificate of classification is taken to be a certificate of occupancy.

353   Transitional regulation-making power

(1)A regulation (a transitional regulation) may make provision of a saving or transitional nature about any matter—

(a)for which it is necessary to make provision to allow or to facilitate the doing of anything to achieve the transition from the pre-amended Act to the amended Act; and

(b)for which this Act does not provide or sufficiently provide.

(2)A transitional regulation may have retrospective operation to a day that is not earlier than the commencement.

(3)A transitional regulation must declare it is a transitional regulation.

(4)This section and any transitional regulation expire 2 years after the commencement.

58   Omission of sch 1 (The QDC on 14 June 2011)

Schedule 1—
omit.

59   Amendment of sch 2 (Dictionary)

(1)Schedule 2, definitions AIBS, alternative solution, certificate of classification, commencement (both occurrences), previous (all occurrences) and QDC boundary clearance and site cover provisions—
omit.

(2)Schedule 2—
insert—

accumulate, for chapter 6, part 5, see section 214A.

certificate of occupancy, for a building or structure, means—

(a)a certificate about its BCA classification in force under section 106; or

(b)an interim certificate of occupancy in force under section 104.

conviction, of a person for a demerit offence, for chapter 6, part 5, see section 214A.

default certificate, for chapter 6, part 5, see section 214A.

demerit offence see section 214A.

demerit point see section 214A.

disqualification notice, for chapter 6, part 5, see section 214K(2).

disqualified individual see section 214B.

infringement notice, for chapter 6, part 5, see section 214A.

performance solution means a material, system, method of building or other thing, other than the following, intended to be used by a person to comply with relevant performance requirements—

(a)if the relevant performance requirements are under the BCA—a building solution under the BCA that complies with the deemed-to-satisfy provisions under the BCA for the performance requirements;

(b)if the relevant performance requirements are under the QDC—an acceptable solution under the QDC for the performance requirements.

QDC residential design and siting provisions means the parts, or aspects of parts, of the QDC prescribed by regulation.

registrar, for chapter 6, part 5, see section 214A.

stage, of assessable building work, means a stage of the work, prescribed by regulation, at which the work may be inspected.

(3)Schedule 2, definition information notice, paragraph (b), after ‘246CY,’—
insert—

or a decision of the QBCC relating to accumulation of demerit points under section 214K,

(4)Schedule 2, definition special structure, ‘part A3’—
omit, insert—

part A6

Part 4    Amendment of Building Industry Fairness (Security of Payment) Act 2017

60   Act amended

This part amends the Building Industry Fairness (Security of Payment) Act 2017.

61   Amendment of s 2 (Commencement)

(1)Section 2(1) and (1A)—
omit, insert—

(1)Chapter 9, part 1, divisions 1 to 4 commence on a day to be fixed by proclamation.

(2)Section 2(2), ‘division 2 or 3’—
omit, insert—

divisions 1 to 4

62   Amendment of s 3 (The main purpose of Act)

Section 3(2)(a)—
omit, insert—

(a)requiring the use of statutory trusts for particular contracts related to the building and construction industry; and

63   Replacement of ch 2 (Project bank accounts)

Chapter 2—
omit, insert—

Chapter 2    Statutory trusts

Part 1    Preliminary

7   Purpose of chapter

The main purpose of this chapter is to ensure that funds paid to the contracted party for particular contracts are held in a trust to protect the interests of subcontractors.

8   Definitions for chapter

In this chapter—

approved financial institution means a financial institution approved by the commissioner under section 55.

building means a fixed structure that is wholly or partly enclosed by walls or is roofed.

contract administration, in relation to project trust work wholly or partly designed by a person, includes the following—

(a)preparing tender documentation and calling and selecting tenders;

(b)preparing, or helping the person’s clients with the preparation of, contracts;

(c)preparing additional documentation for the person’s clients or building contractors;

(d)arranging and conducting on-site meetings and inspections;

(e)arranging progress payments;

(f)arranging for certificates, including certificates from a local government, to be issued;

(g)providing advice and help to the person’s clients including during the maintenance period allowed under a contract.

contracted party, for a contract, means the party to the contract who is required to perform work under the contract, whether by—

(a)carrying out the work personally; or

(b)directly or indirectly causing the work to be carried out.

contracted work, for a contract, means the work required to be carried out under the contract.

contracting party, for a contract, means the party to the contract for whom the contracted work is to be carried out.

contract price see section 9.

hospital and health service means a Hospital and Health Service established under the Hospital and Health Boards Act 2011, section 17.

mechanical services work see the Queensland Building and Construction Commission Act 1991, schedule 2.

project trust work see section 8A.

protected work see section 8B.

State authority—

(a)means—

(i)an agency, authority, commission, corporation, instrumentality, office, or other entity, established under an Act or by authority of the State for a public or State purpose; or

(ii)a corporation that is—

(A)owned or controlled by the State, a local government or an entity mentioned in subparagraph (i); and

(B)prescribed by regulation to be a State authority; or

(iii)a subsidiary of a corporation mentioned in subparagraph (ii); or

(iv)a part of an entity mentioned in subparagraphs (i) to (iii); or

(v)a hospital and health service; but

(b)does not include an entity prescribed by regulation not to be a State authority.

trust records see section 52(1).

variation, of a contract, means an addition to, or an omission from, the contracted work.

8A   Meaning of project trust work

(1)Project trust work means any of the following work—

(a)the erection or construction of a building;

(b)the renovation, alteration, extension, improvement or repair of a building;

(c)the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage in connection with a building;

(d)any site work (including the construction of retaining structures) related to work of a kind mentioned in paragraph (a), (b) or (c);

(e)the preparation of plans or specifications for the performance of any other work mentioned in this subsection;

(f)contract administration if carried out by a person for the construction of a building wholly or partly designed by the person;

(g)fire protection work within the meaning of the Queensland Building and Construction Commission Act 1991, schedule 2;

(h)site testing within the meaning of the Queensland Building and Construction Commission Act 1991, schedule 2 and classification carried out in preparation for the erection or construction of a building on the site;

(i)the carrying out of a building inspection;

(j)the inspection or investigation of a building, and the provision of advice or a report, for the following—

(i)termite management systems for the building;

(ii)termite infestation in the building;

(k)work performed by an architect under the Architects Act 2002 in the architect’s professional practice if the work is associated with a building;

(l)work performed by a registered professional engineer under the Professional Engineers Act 2002 in the engineer’s professional practice if the work is associated with a building;

(m)work performed by a surveyor under the Surveyors Act 2003 in the surveyor’s professional practice if the work is associated with a building;

(n)electrical work under the Electrical Safety Act 2002 if the work is associated with a building;

(o)the erection of scaffolding that is associated with a building;

(p)earthmoving and excavating that is associated with a building;

(q)certification work performed by a building certifier under the Building Act 1975 in the certifier’s professional practice if the work is associated with a building;

(r)the assessment of energy efficiency of a building;

(s)work performed by a fire safety adviser under the Building Fire Safety Regulation 2008 if the work is associated with a building;

(t)the laying of wet pour rubber, including the laying of a blended mix of graded rubber particles and binder to provide a continuous surface if the work is associated with a building;

(u)the installation of prefabricated components of a building;

(v)mechanical services work that is associated with a building.

(2)Project trust work also includes work prescribed by regulation to be project trust work.

(3)However, project trust work does not include work prescribed by regulation not to be project trust work.

8B   Meaning of protected work

(1)Protected work means any of the following work—

(a)the construction, alteration, repair, restoration, maintenance, extension, demolition or dismantling of buildings, whether permanent or not, forming, or to form, part of land;

(b)the construction, alteration, repair, restoration, maintenance, extension, demolition or dismantling of any works forming, or to form, part of land, including walls, roadworks, powerlines, telecommunication apparatus, aircraft runways, docks and harbours, railways, inland waterways, pipelines, reservoirs, water mains, wells, sewers, industrial plant and installations for land drainage or coast protection;

(c)the installation in any building or other works of fittings forming, or to form, part of land, including heating, lighting, air-conditioning, ventilation, power supply, drainage, sanitation, water supply, fire protection, security and communications systems;

(d)the external or internal cleaning of buildings and other works, so far as it is carried out in the course of their construction, alteration, repair, restoration, maintenance or extension;

(e)any operation that forms an integral part of, or is preparatory to or is for completing, work of the kind referred to in paragraph (a), (b) or (c), including—

(i)site clearance, earthmoving, excavation, tunnelling and boring; and

(ii)the laying of foundations; and

(iii)the erection, maintenance or dismantling of scaffolding; and

(iv)the prefabrication of components to form part of any building or other works, whether carried out on-site or off-site; and

(v)site restoration, landscaping and the provision of roadways and other access works;

(f)the painting or decorating of the internal or external surfaces of any building or other works;

(g)the testing of soils and road making materials during the construction and maintenance of roads;

(h)the prefabrication of complete buildings or components of a building or other works, whether carried out on-site or off-site;

(i)any other work of a kind prescribed by regulation.

(2)However, protected work does not include any of the following work—

(a)the drilling for, or extraction of, oil or natural gas;

(b)the extraction, whether by underground or surface working, of minerals, including tunnelling or boring, or constructing underground works, for that purpose;

(c)work prescribed by regulation not to be protected work.

(3)To remove any doubt, it is declared that project trust work is protected work unless the work is prescribed under subsection (2)(c).

Note—

The scope of work that is protected work is broader than the scope of work that is project trust work.

9   Meaning of contract price

(1)The contract price, for a contract, means the amount the contracted party is entitled to be paid under the contract or, if the amount can not be accurately calculated, the reasonable estimate of the amount the contracted party is entitled to be paid under the contract.

(2)In working out the amount under subsection (1), an amount for GST is not to be included.

Part 2    Project trusts

Division 1 Preliminary

10   Definitions for part

In this part—

head contract means a contract for project trust work that is not also a subcontract of another contract.

minimum contract price means an amount prescribed by regulation.

project trust account means the account for a project trust at a financial institution.

related services means—

(a)architectural, design, surveying or quantity surveying services relating to protected work; or

(b)building advisory services, engineering advisory services, interior or exterior decoration advisory services or landscaping advisory services if relating to protected work; or

(c)soil testing services relating to protected work.

subcontractor beneficiary, for a project trust, means a subcontractor who is a beneficiary of the trust under section 11A(4).

10A   Who is a related entity

(1)A person is a related entity for another person if—

(a)for individuals—they are members of the same family; or

(b)for an individual and a corporation—the individual or a member of the individual’s family—

(i)is a majority shareholder, director or secretary of the corporation or a related body corporate of the corporation; or

(ii)has an interest of 50% or more in the corporation; or

(c)for an individual and a trustee of a trust—the individual or a related entity under another provision of this section is a beneficiary of the trust; or

(d)for corporations—they are related bodies corporate; or

(e)for a corporation and a trustee of a trust—the corporation or a related entity under another provision of this section is a beneficiary of the trust; or

(f)for trustees of 2 or more trusts—

(i)a person is a beneficiary of both trusts; or

(ii)a person is a beneficiary of 1 trust and a related entity under another provision of this section is a beneficiary of the other trust.

(2)Also, a person is a related entity for another person if the persons acquire interests in a land holding trust and the acquisitions form, evidence, give effect to or arise from what is substantially 1 arrangement.

(3)In this section—

family, for a person, means—

(a)the person’s spouse; or

(b)a parent of the person or the person’s spouse; or

(c)a grandparent of the person or the person’s spouse; or

(d)a brother, sister, aunt, uncle, nephew or niece of the person or the person’s spouse; or

(e)a child of the person or the person’s spouse; or

(f)a grandchild of the person or the person’s spouse; or

(g)the spouse of any person mentioned in paragraphs (b) to (f).

land holding trust see the Duties Act 2001, schedule 6.

related bodies corporate means bodies corporate that are related under the Corporations Act, section 50.

10B   When amount liable to be paid to subcontractor

For this chapter, a person who is a party to a subcontract is liable to pay an amount to the subcontractor if any of the following circumstances apply—

(a)the amount is due to be paid by the person to the subcontractor in accordance with the terms of the subcontract;

(b)under the subcontract, the amount is certified, or otherwise assessed, as payable by the person to the subcontractor;

(c)the person gives the subcontractor a payment schedule for the amount;

(d)the person is liable to pay the amount to the subcontractor under section 77;

(e)the person must pay the amount to the subcontractor under chapter 3, part 4 because of an adjudication of a disputed progress payment for the subcontract;

(f)the person must pay the amount to the subcontractor because of a final and binding dispute resolution process;

(g)a court or tribunal orders the person to pay the amount to the subcontractor.

10C   References to particular terms in this part

In this part—

(a)a reference to a contract in association with a reference to a project trust is a reference to the contract for which the trust is required; and

(b)a reference to a contracting party in association with a reference to a project trust is a reference to the contracting party for the contract for which the trust is required; and

(c)a reference to a contracted party in association with a reference to a project trust is a reference to the contracted party for the contract for which the trust is required; and

(d)a reference to a trustee in association with a reference to a project trust, or a contract for which a project trust is required, is a reference to the trustee for the project trust; and

(e)a reference to a subcontract in association with a reference to a project trust is a reference to a subcontract of the contract for which the trust is required; and

(f)a reference to a subcontractor beneficiary in association with a reference to a project trust is a reference to a subcontractor beneficiary for the trust; and

(g)a reference to a trustee in association with a reference to a project trust account is a reference to the trustee for the trust to which the account relates.

Division 2 Project trusts

11   What is a project trust

A project trust is a trust—

(a)over the following amounts—

(i)amounts paid by the contracting party to the contracted party under a contract (the project trust contract) for which a project trust is required;

(ii)amounts paid by the contracted party to subcontractors for the project trust contract;

(iii)amounts deposited in the project trust account as required under this chapter; and

(b)primarily for the benefit of subcontractors for the project trust contract.

11A   Who are the trustee and beneficiaries of a project trust

(1)This section applies to a project trust established for a contract (the project trust contract).

(2)The contracted party for the project trust contract is both the trustee and a beneficiary of the project trust.

(3)The contracted party—

(a)becomes the trustee and a beneficiary of the project trust when the trust is established; and

(b)ceases to be the trustee and a beneficiary of the project trust when the trust is lawfully dissolved.

(4)A subcontractor for the project trust contract is a beneficiary of the project trust if—

(a)its subcontract is a first tier subcontract of the project trust contract; and

Note—

If the project trust contract is a subcontract of a head contract, a first tier subcontract of the project trust contract would also be a second tier subcontract of the head contract.

(b)the contracted work for its subcontract is protected work or the supply of related services; and

(c)the contract price for its subcontract is at least the minimum contract price.

(5)A subcontractor who is a beneficiary under subsection (4)—

(a)becomes a beneficiary of the project trust when its subcontract is entered into; and

(b)ceases to be a beneficiary of the project trust when paid all amounts it is entitled to be paid under its subcontract.

(6)Subsection (7) applies if—

(a)the same parties enter into 2 or more separate subcontracts; and

(b)the separate subcontracts are for carrying out protected work at the same site or adjacent sites.

(7)The contract price for each of the separate subcontracts for the purpose of subsection (4)(c) is the total of the contract prices for all the separate subcontracts.

11B   What are the beneficial interests in a project trust

(1)The beneficiaries of a project trust for a contract have a beneficial interest in—

(a)for a subcontractor for the contract (as beneficiary)—an amount the subcontractor is entitled to be paid under its subcontract; or

(b)for the contracted party for the contract (as beneficiary)—the remainder for the trust.

(2)In this section—

remainder, for a project trust, means the amount still held in trust after subtracting all amounts subcontractor beneficiaries are entitled to be paid in connection with their subcontracts.

Division 3 Contracts requiring project trusts

Subdivision 1 When project trust required

12   When project trust required for a contract

(1)This section applies to a contract entered into on or after the commencement of this section.

(2)A project trust is required for a contract if—

(a)the contract is eligible for a project trust under subdivision 2; and

(b)the contract is not exempted under subdivision 3; and

(c)the contracted party enters into a subcontract for all or part of the contracted work.

(3)The requirement starts on the first day a project trust is required under subsection (2).

(4)The requirement continues until the project trust is dissolved under section 21, regardless of any of the following changes—

(a)a variation, or any other amendment, of the contract;

(b)a change in the contract price;

(c)a change in the contracted work.

(5)If a project trust is required for a contract and a project trust is also required for a subcontract of the contract, separate project trusts are required for the contract and the subcontract.

(6)Despite subsection (1), if the contract was entered into because of a tender process, this section only applies to the contract if the tender process was started on or after the commencement of this subsection.

(7)If the tender process for the contract was started before the commencement of this subsection, this chapter, as in force when the tender process was started, continues to apply for the contract despite any amendment of this chapter after the start of the tender process.

Subdivision 2 Eligible contracts

14   Particular contracts for project trust work

(1)A contract is eligible for a project trust if—

(a)an employee;

(b)if the other person is a corporation—an executive officer of, or investor or shareholder in, the corporation;

(c)if the other person carries on business in partnership—a partner in the partnership.

(3)In this section—

related entity see the Building Industry Fairness (Security of Payment) Act 2017, section 19.

50CB    Commission may give exclusion notice

(1)The commission may give a person who is an accountant an exclusion notice.

(2)The exclusion notice—

(a)must state the grounds for giving the notice; and

(b)may state requirements, aimed at providing the person with the skills and knowledge necessary to comply with the minimum financial requirements, that, if not met, may be grounds for giving the person another exclusion notice.

(3)The exclusion notice has effect for a period of 3 years starting on the day the notice is given to the person or a later day stated in the notice.

50CC    Grounds for giving exclusion notice

Each of the following is a ground for the giving of an exclusion notice to a person—

(a)the person has, within 3 years before the exclusion notice is given to the person, given information that the person knew to be false or misleading to a licensed contractor, or to the commission, in relation to a licensed contractor’s satisfaction of the minimum financial requirements;

(b)the person has, within 3 years before the exclusion notice is given to the person, failed to comply with the minimum financial requirements in relation to information required to be given to the commission under those requirements;

(c)if the person has previously been given an exclusion notice—the person has not complied with a requirement stated in the notice under section 50CB(2)(b).

50CD    Steps before giving exclusion notice

(1)Before giving a person an exclusion notice, the commission must give the person a written notice (a show cause notice) stating—

(a)that the commission proposes to give the person an exclusion notice; and

(b)the grounds for giving the exclusion notice; and

(c)an outline of the facts and circumstances forming the basis for the grounds; and

(d)that the person may, within a stated reasonable period of at least 14 days after the show cause notice is given, make written representations about why the exclusion notice should not be given.

(2)The commission must consider all written representations made by the person within the period stated in the show cause notice under subsection (1)(d).

(3)If, after considering any written representations, the commission no longer believes the grounds for giving an exclusion notice exist, the commission—

(a)must not take further action about the show cause notice; and

(b)must, as soon as practicable, give written notice to the person that no further action is to be taken in relation to the show cause notice.

(4)If, after considering any written representations, the commission believes a ground exists for giving the exclusion notice, the commission may give the notice under section 50CB.

50CE    Commission may give particular information to professional bodies

(1)This section applies if the commission reasonably suspects conduct forming a ground on which an exclusion notice is given to a person is a breach of a professional standard or condition applying to the person.

(2)The commission may inform a professional body for accountants of the conduct, and give the body any documents necessary to investigate the conduct.

50CF    Publication of relevant details

(1)The commission may publish on the commission’s website the following details for an individual to whom an exclusion notice has been given—

(a)the individual’s full name and business address;

(b)if the individual is or has been known by another name—all other names the individual is or has been known by;

(c)that an exclusion notice has been given to the person;

(d)the period the exclusion notice has effect.

(2)However—

(a)if the individual’s business address is the same as the individual’s residential address, the business address must not be published; and

(b)the commission must remove the individual’s details from the website as soon as practicable after the exclusion notice stops having effect.

118   Amendment of s 53A (Satisfying minimum financial requirements at renewal)

(1)Section 53A(1), from ‘information,’ to ‘regulation,’—
omit, insert—

the information required under the minimum financial requirements, within the time allowed under those requirements,

(2)Section 53A(2) to (5)—
omit.

120   Amendment of s 56AG (Procedure if licensee is excluded company)

Section 56AG(2)(d), ‘subsections (3), (4) and (5)’—
omit, insert—

subsection (3)

120A    Amendment of s 67AB (Meaning of tier 1 defective work and carry out tier 1 defective work)

Section 67AB(1)(b), examples for paragraph (b)(ii), from ‘a fire protection’ to ‘the system’—
omit, insert—

fire protection equipment that does not meet the requirements of the Building Code of Australia for the equipment

121   Amendment and renumbering of s 72AA (Delaying or obstructing compliance with direction to rectify or remedy)

(1)Section 72AA(1)—
insert—

Maximum penalty—250 penalty units.

(2)Section 72AA(2), before the note—
insert—

Maximum penalty—250 penalty units.

(3)Section 72AA—
renumber as section 72C.

122   Amendment of s 86 (Reviewable decisions)

Section 86(1)—
insert—

(ja)a decision under section 50CB to give a person an exclusion notice;

123   Insertion of new s 109B

After section 109A—
insert—

109B    Licensees must give commission notice of particular matters about interstate or New Zealand licences

A licensee must, unless the licensee has a reasonable excuse, give the commission notice in the approved form of the following events within 14 days after the day the event happens—

(a)the licensee is given an interstate or New Zealand licence;

(b)the licensee’s interstate or New Zealand licence is suspended or cancelled.

Maximum penalty—20 penalty units.

123A    Insertion of new s 115D

After section 115C—
insert—

115D    Review of role of developers

(1)The Minister must ensure a review is conducted of the role of developers in the building and construction industry.

(2)The Minister must appoint a panel of not more than 4 appropriately qualified persons to conduct the review.

(3)The Minister must give the panel directions or a terms of reference to guide the review.

(4)The Minister must table in the Legislative Assembly a report on the outcome of the review as soon as practicable after the review is completed.

124   Amendment of s 116 (Regulations)

Section 116(2)(ab), after ‘Act’—
insert—

, including requirements about information that must be prepared or signed by a qualified accountant;

125   Amendment of sch 1 (Transitional and validating provisions)

Schedule 1—
insert—

Part 17    Transitional and validation provisions for Building Industry Fairness (Security of Payment) and Other Legislation Amendment Act 2020

79   Validation of relevant landscaping work

(1)This section applies in relation to relevant landscaping work carried out before the commencement of the Queensland Building and Construction Commission (Structural Landscaping Licences) Amendment Regulation 2019 by the holder of a licence of either of the following classes—

(a)a builder restricted to structural landscaping licence;

(b)a structural landscaping (trade) licence.

(2)The holder is taken to have held a licence of the appropriate class for carrying out the relevant landscaping work.

(3)In this section—

relevant landscaping work means work mentioned in the following provisions of the Queensland Building and Construction Commission Regulation 2018—

(a)schedule 2, part 10, section 2(7);

(b)schedule 2, part 54, section 2(5).

79A   Validation of work—installation of fire collars

(1)This section applies in relation to work that is the installation of a fire collar—

(a)that was carried out by the holder of a relevant licence before the relevant commencement; and

(b)to the extent the work would, if it were carried out by the holder on the relevant commencement, have been authorised for the holder’s licence under an amended provision.

(2)The holder is taken to have held a licence of the appropriate class for carrying out the work.

(3)In this section—

amended provisions means the following provisions of the Queensland Building and Construction Commission Regulation 2018, schedule 2, as in force on the relevant commencement—

(a)part 18, section 2(2);

(b)part 25, section 2(3)(b);

(c)part 26, section 2(7);

(d)part 30, section 2(2)(b);

(e)part 36, section 2(2);

(f)part 47, section 2(2);

(g)part 48, section 2(2).

relevant commencement means the commencement of the Queensland Building and Construction Commission and Other Legislation Amendment Regulation 2019, section 12.

Note—

The date of the relevant commencement is 13 December 2019.

relevant licence means a licence of any of the following classes—

(a)plumbing and drainage;

(b)the licence class of install and maintain for a special hazard suppression systems licence;

(c)the following licence classes for a sprinkler and suppression systems (reticulated water-based) licence—

(i)install and maintain;

(ii)install and maintain—restricted to commercial or industrial type;

(iii)install and maintain—restricted to domestic or residential type;

(d)the licence class of install and maintain—extra low voltage for a fire detection, alarm and warning systems licence;

(e)gasfitting;

(f)refrigeration, air conditioning and mechanical services including unlimited design;

(g)refrigeration, air conditioning and mechanical services including limited design.

80   Matters relating to interstate or New Zealand licences

(1)For deciding whether a person is a fit and proper person or whether to suspend or cancel a licence, sections 31, 32, 32AA(2) and 48(2) apply in relation to the suspension or cancellation of an interstate or New Zealand licence only if the suspension or cancellation happens after the commencement.

(2)The commission may give a notice under section 28C for an event mentioned in section 28C(1) only if the event happens after the commencement.

81   Accountants excluded under minimum financial requirements before commencement

(1)This section applies if, before the commencement, the commission decided not to approve a person as a qualified accountant for the Queensland Building and Construction Commission (Minimum Financial Requirements) Regulation 2018, section 11D.

(2)As soon as practicable after the commencement, the commission must give the person an exclusion notice for the decision.

(3)The exclusion notice is taken to have been given to the person on the day the person was given notice of the decision mentioned in subsection (1) that the person was not approved as a qualified accountant.

82   Transitional regulation-making power

(1)A regulation (a transitional regulation) may make provision about a matter for which—

(a)it is necessary to make provision to allow or facilitate the doing of anything to achieve the transition from the operation of this Act as in force immediately before the commencement to the operation of the amended Act; and

(b)this Act does not make provision or sufficient provision.

(2)A transitional regulation may have retrospective operation to a day not earlier than the day of commencement.

(3)A transitional regulation must declare it is a transitional regulation.

(4)This section and any transitional regulation expire 2 years after the day of commencement.

(5)In this section—

amended Act means this Act as amended by the Building Industry Fairness (Security of Payment) and Other Legislation Amendment Act 2020.

125A    Amendment of sch 1A (Exemptions from requirement to hold contractor’s licence)

Schedule 1A, section 8—
omit.

126   Amendment of sch 2 (Dictionary)

(1)Schedule 2, definitions fire protection system, fire protection work and occupational licence—

omit.

(2)Schedule 2—
insert—

exclusion notice see section 50CB(1).

fire protection equipment, for a building, means equipment for protecting all or part of the building from fire that consists of, or is a system comprised of, 1 or more of the following—

(a)a portable firefighting appliance, including, for example, a wheeled fire-extinguisher, fire hose or portable fire-extinguisher;

(b)a fire hydrant system, with or without a pump;

(c)a fire hose reel system, with or without a pump;

(d)a fire or smoke detection system, heat or smoke alarm or another alarm system or emergency warning and communication system;

(e)a fire suppression system or fire sprinkler system, whether solid-based, liquid-based or gas-based;

(f)a fire door, fire shutter or fire damper assembly;

(g)a fire or smoke wall;

(h)a fire collar;

(i)a fire penetration joint or seal;

(j)emergency lighting.

fire protection work see section 30CA.

interstate or New Zealand licence means a licence granted by an interstate or New Zealand licensing authority that authorises the carrying out of building work that is equivalent, or substantially equivalent, to building work authorised under a licence under this Act.

interstate or New Zealand licensing authority means an entity established under a law of another State or New Zealand having functions similar to the commission’s functions for granting licences under this Act.

occupational licence means a licence or registration for an occupation relating to building work that is—

(a)given to a person under an Act prescribed by regulation; and

(b)required by the person to carry out the occupation.

qualified accountant see section 50CA(1).

Division 3 Auditing amendments

127   Amendment of s 50A (Approved audit program)

Section 50A(1)(d)—
omit.

128   Amendment of s 50CA (Who is a qualified accountant)

Section 50CA(3), definition related entity, ‘section 19’—
omit, insert—

section 10A

129   Amendment of s 67AZB (Limit on demerit points from single audit)

Section 67AZB—
insert—

(5)In this section—

approved audit program includes an approved audit program under the Building Industry Fairness (Security of Payment) Act 2017.

130   Amendment of s 67NB (Failure to pay retention amount)

Section 67NB, after ‘retention amount’—
insert—

or other security

131   Amendment of s 67U (Void payment provision in construction management trade contract or subcontract)

Section 67U—
insert—

(2)In this section—

business day means a day that is not—

(a)a Saturday or Sunday; or

(b)a public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done; or

(c)a day in the period from 22 December in a particular year to 10 January in the following year, both days inclusive.

132   Amendment of s 67W (Void payment provision in commercial building contract)

Section 67W—
insert—

(2)In this section—

business day means a day that is not—

(a)a Saturday or Sunday; or

(b)a public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done; or

(c)a day in the period from 22 December in a particular year to 10 January in the following year, both days inclusive.

133   Amendment of s 86 (Reviewable decisions)

Section 86(2)—
insert—

(aa)the Building Industry Fairness (Security of Payment) Act 2017, section 54E;

Division 4 Amendments about excluded individuals

134   Amendment of s 32AA (Entitlement to a site supervisor’s licence)

Section 32AA(1)(d)—
omit, insert—

(d)the applicant is not an excluded individual or permanently excluded individual; and

(e)the applicant is a fit and proper person to hold the licence.

135   Amendment of s 42E (Avoidance of contractual obligations causing significant financial loss)

(1)Section 42E(2), from ‘the person deliberately’ to ‘comply with,’—
omit, insert—

of the person’s deliberate non-compliance with

(2)Section 42E(2)—
insert—

Note—

See also the Justices Act 1886, section 76.

136   Amendment of s 48 (Cancellation or suspension of licence)

(1)Section 48(1)(j), ‘32AA(1)(d)’—
omit, insert—

32AA(1)(e)

(2)Section 48(1)(e) to (ia)—
renumber as section 48(1)(d) to (i).

137   Amendment of s 50C (Supply of financial records and other documents under approved audit program or for other reason)

Section 50C(5), ‘section 48(1)(h)’—
omit, insert—

section 48(1)(f)

138   Amendment of s 53B (False or misleading documents about minimum financial requirements)

(1)Section 53B, heading, ‘documents’—
omit, insert—

information

(2)Section 53B(1), ‘a document or’—
omit.

(3)Section 53B(1)(a)—
omit, insert—

(a)the person knows the information is false or misleading; or

(4)Section 53B(1)(b), ‘the document contains information that is false or misleading or’—
omit.

(5)Section 53B(2) and (3)—
omit, insert—

(2)A licensee commits an offence if—

(a)the licensee gives another person, other than the commission, MFR information in relation to the licensee for the purpose of the other person giving information to the commission; and

(b)when the MFR information is given, the licensee knows the information is false or misleading; and

(c)the MFR information is given to the commission by the other person in compliance or purported compliance with a requirement under this Act.

Maximum penalty—100 penalty units or 2 years imprisonment.

(3)Subsections (1)(a) and (2) do not apply to a person if, when giving the information to the commission or other person (each a recipient), the person—

(a)informs the recipient, to the best of the person’s ability, how the information is false or misleading; and

(b)gives the correct information to the recipient if the person has, or can reasonably obtain, the correct information.

(4)In this section—

MFR information, in relation to a licensee, means information relating to the licensee’s satisfaction of minimum financial requirements.

139   Amendment of s 56AB (Operation of pt 3A)

(1)Section 56AB(a)—
omit.

(2)Section 56AB(b) and (c)—
renumber as section 56AB(a) and (b).

140   Insertion of new pt 3A, div 4

Part 3A—
insert—

Division 4 Publication of details of particular excluded individuals

56AI    Publication of relevant details about excluded individuals who are not licensees

(1)The commission may publish the relevant details for an individual if—

(a)the individual is not a licensee; and

(b)the commission has decided under section 56AK to publish the details; and

(c)all periods for applying for a review of the decision, or appealing against a decision made on review, have ended; and

(d)any review or appeal mentioned in paragraph (c) is finally decided or is not proceeded with.

(2)The relevant details for the individual are—

(a)the individual’s full name and business address; and

(b)if the individual is or has been known by another name—all other names the individual is or has been known by; and

(c)that the individual is an excluded individual for a stated relevant event; and

(d)the date the 3-year period mentioned in section 56AC(1)(b) or (2)(b) ends; and

(e)any other particulars prescribed by regulation.

(3)The individual’s relevant details may be published under subsection (1) on the commission’s website.

(4)Despite subsection (1)—

(a)if the individual’s business address is the same as the individual’s residential address, the only part of the address that may be published is the suburb or locality in which the individual’s business is located; and

(b)no details may be published about the individual after the day that is 10 years from the day the details were first published under this section.

56AJ    Show cause notice

(1)This section applies if the commission considers an individual who is not a licensee is an excluded individual for a relevant event.

(2)The commission may give the individual a written notice (a show cause notice) identifying the relevant event and stating the following—

(a)why the commission considers the individual is an excluded individual for the relevant event;

(b)that, within 28 days after the commission gives the show cause notice, the individual may give the commission a written submission to show why the individual is not an excluded individual for the relevant event;

(c)that the commission may publish the individual’s relevant details if—

(i)the individual does not make a written submission mentioned in paragraph (b); or

(ii)after considering a written submission made by the individual, the commission is satisfied the individual is an excluded individual for the relevant event.

(3)The individual may, within 28 days after the show cause notice is given to the individual, give the commission a written submission to show why the individual is not an excluded individual for the relevant event.

56AK    Decision by commission about whether to publish the individual’s relevant details

(1)This section applies if—

(a)after considering a written submission made by an individual under section 56AJ(3), the commission is satisfied the individual is an excluded individual for the relevant event; or

(b)the individual does not make a written submission under section 56AJ(3).

(2)The commission may decide to publish the individual’s relevant details.

(3)The commission must give the individual written notice of its decision.

(4)If the decision is to publish the individual’s relevant details, the notice must inform the individual of the individual’s right to apply to the tribunal for a review of the decision.

141   Amendment of s 57 (Operation of pt 3B)

(1)Section 57(a)—
omit.

(2)Section 57(b) and (c)—
renumber as section 57(a) and (b).

142   Amendment of s 58 (Meaning of permanently excluded individual)

(1)Section 58(2)(b)(i), after ‘excluded individual’—
insert—

including, if the individual is not a licensee, the effect of section 61A

(2)Section 58(2)—
insert—

(c)if the individual is not a licensee—must be a show cause notice under section 56AJ.

143   Insertion of new pt 3B, div 3

Part 3B—
insert—

Division 3 Publication of details of particular permanently excluded individuals

61A   Publication of relevant details of permanently excluded individuals who are not licensees

(1)The commission may publish the relevant details for an individual if the individual—

(a)is not a licensee; and

(b)is a permanently excluded individual; and

(c)all periods for applying for a review of a decision about a relevant event related to the exclusion, or making an appeal against a decision made on the review, have ended; and

(d)any review or appeal mentioned in paragraph (c) is finally decided or is not proceeded with.

(2)The relevant details for the individual are—

(a)the individual’s full name and business address; and

(b)if the individual is or has been known by another name—all other names the individual is or has been known by; and

(c)that the individual is a permanently excluded individual for a stated relevant event; and

(d)the day on which the individual became a permanently excluded individual; and

(e)any other particulars prescribed by regulation.

(3)The individual’s relevant details may be published under subsection (1) on the commission’s website.

(4)Despite subsection (1)—

(a)if the individual’s business address is the same as the individual’s residential address, the only part of the address that may be published is the suburb or locality in which the individual’s business is located; and

(b)no details may be published about the individual after the day that is 10 years from the day the details were first published under this section.

144   Amendment of s 62 (Operation of pt 3C)

(1)Section 62(a)—
omit.

(2)Section 62(b) and (c)—
renumber as section 62(a) and (b).

145   Amendment of s 67AV (Operation of pt 3E)

(1)Section 67AV(a)—
omit.

(2)Section 67AV(b) and (c)—
renumber as section 67AV(a) and (b).

146   Amendment of s 86 (Reviewable decisions)

(1)Section 86(1)—
insert—

(ka)if the commission gives an individual a notice under section 56AK(3)—

(i)the commission’s decision that the individual is an excluded individual for a relevant event; or

(ii)the commission’s decision under section 56AK(2) to publish the individual’s relevant details;

(2)Section 86(2), after ‘decision of the’—
insert—

commission or

(3)Section 86(2)(a), after ‘204,’—
insert—

214K,

147   Amendment of s 111 (Prosecutions for offences)

(1)Section 111(1), ‘2 years’—
omit, insert—

3 years

(2)Section 111(1), ‘1 year’—
omit, insert—

2 years

148   Insertion of new sch 1, pt 17, ss 83 and 84

After schedule 1, part 17, section 82, as inserted by this Act—
insert—

83   Application of pts 3A, 3B, 3C and 3E

(1)Parts 3A, 3B, 3C and 3E apply to a site supervisor only in relation to a relevant event that happens after the commencement.

(2)Part 3A, division 4 applies in relation to an individual, other than a site supervisor, who is an excluded individual for a relevant event, whether the event happened before or after the commencement.

(3)Part 3B, division 3 applies in relation to an individual, other than a site supervisor, who is a permanently excluded individual, even if the individual became a permanently excluded individual before the commencement.

84   Continued application of pre-amended limitation period

Section 111, as in force from time to time before the commencement, continues to apply in relation to an offence committed before the commencement.

149   Amendment of sch 2 (Dictionary)

Schedule 2—
insert—

relevant details, for part 3A, division 4, see section 56AI(2).

Part 7    Amendment of Retirement Villages Act 1999

150   Act amended

This part amends the Retirement Villages Act 1999.

151   Insertion of new s 41K

After section 41J—
insert—

41K   Application to tribunal for review

A person who has been given a QCAT information notice under this division may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.

Part 8    Repeal

152   Repeal

The Retirement Villages (Transitional) Regulation 2019, SL No. 256 is repealed.

Part 9    Minor and consequential amendments

153   Acts amended

Schedule 1 amends the Acts mentioned in it.

Schedule 1 Acts amended

section 153

Part 1    Miscellaneous amendments

Architects Act 2002

1   Section 8(4), note, ‘(Lapsing of application)’—

omit.

2   Section 10(a)(iii), editor’s note—

omit.

3   Section 10(b)(ii), editor’s note—

omit.

4   Section 16(4)(a), ‘on the internet’—

omit.

5   Section 16(4), editor’s note—

omit.

6   Section 27(3), ‘reasonable and, in any case,’—

omit.

7   Section 35B, ‘commissioner of the police service’—

omit, insert—

police commissioner

8   Section 35D(2), ‘doctor’—

omit, insert—

medical practitioner

9   Section 35E, ‘doctor’—

omit, insert—

medical practitioner

10   Section 48(3), from ‘has the’—

omit, insert—

is appropriately qualified.

11   Section 74A(2), ‘on the internet’—

omit.

Professional Engineers Act 2002

1   Section 7A(2) and editor’s note—

omit, insert—

(2)The board must publish the areas of engineering on its website.

2   Section 16(4)(a) and (5)(a), ‘on the internet’—

omit.

3   Section 16(5), editor’s note—

omit.

4   Section 27(3), ‘reasonable and, in any case,’—

omit.

5   Section 35B, ‘commissioner of the police service’—

omit, insert—

police commissioner

6   Section 35E(2), ‘doctor’—

omit, insert—

medical practitioner

7   Section 35F, ‘doctor’—

omit, insert—

medical practitioner

7A   Section 35H, heading, ‘heath’—

omit, insert—

health

8   Section 48(3), from ‘has the’—

omit, insert—

is appropriately qualified.

9   Section 74A(2), ‘on the internet’—

omit.

10   Section 75B(2), ‘on the internet’—

omit.

11   Section 112V(2)(a), ‘on the internet’—

omit.

12   Section 112V(2), editor’s note—

omit.

Part 2    Amendments about certificates of classification and alternative solutions

Building Act 1975

1   References to certificate of classification—

Each of the following provisions is amended by omitting ‘of classification’ and inserting ‘of occupancy’—

•section 3

•section 10

•section 48

•section 50

•section 61

•section 71

•chapter 5, part 2, heading

•section 102

•section 103

•section 104

•section 105

•chapter 5, part 2, division 3, heading

•section 106

•section 107

•section 108

•section 108A

•section 109

•section 113

•section 114

•section 114A

•section 117

•section 118

•section 123

•section 124

•section 146

•section 147

•section 148

•section 149

•section 231AJ

•section 231AK

•section 231AL

•section 231AM

•section 231AP

•section 231AQ

•section 246AN

•section 246AP

•schedule 2, definition inspection documentation, paragraph (e)

2   Section 14(4)(b), ‘an alternative’—

omit, insert—

a performance

3   Section 26, heading, ‘alternative’—

omit, insert—

performance

4   Section 26, ‘an alternative’—

omit, insert—

a performance

5   Section 26(b)(i), ‘alternative’—

omit, insert—

performance

6   Section 63(b), ‘an alternative’—

omit, insert—

a performance

7   Section 68A, heading, ‘alternative’—

omit, insert—

performance

8   Section 68A(1)(a), ‘an alternative’—

omit, insert—

a performance

9   Section 68A(1)(b) and (3)(a), ‘alternative’—

omit, insert—

performance

10   Section 103(f) including examples, ‘alternative’—

omit, insert—

performance

11   Section 103(f), examples, last dot point ‘note 3’—

omit, insert—

note 4

12   Section 120, ‘part A3,’—

omit.

13   Section 121(2)(a), ‘, part A3’—

omit.

14   Section 185(3), definition national accreditation framework, ‘body’—

omit, insert—

entity

15   Section 216(5), definition class 1a building, ‘part A3.2,’—

omit.

16   Section 216(5), definition class 1a building, editor’s note—

omit.

17   Section 216(5), definition class 2 building, ‘part A3.2,’—

omit.

18   Section 216(5), definition class 2 building, editor’s note—

omit.

19   Section 216(5), definition class 9a building, ‘part A3.2,’—

omit.

20   Section 216(5), definition class 9a building, editor’s note—

omit.

21   Section 228(1)(b), ‘an alternative’—

omit, insert—

a performance

22   Section 231(2)(a), from ‘an alternative’ to ‘the alternative’—

omit, insert—

a performance solution for performance requirements under the BCA—the records required under the performance

23   Section 231(2)(a), editor’s note—

omit.

24   Section 231AB, definition type A construction, ‘, part C1’—

omit.

25   Section 231AB, definition type B construction, ‘, part C1’—

omit.

26   Schedule 2, definition approval documents, paragraph (f), from ‘an alternative’ to ‘the alternative’—

omit, insert—

a performance solution and the assessment manager approved the application on the basis of the performance

27   Schedule 2, definition BCA classification, note—

omit.

28   Schedule 2, definition fire safety installation, item 3—

omit, insert—

3Also, if a performance solution to a performance requirement under the BCA relating to the fire safety system has been used for a building or structure, a fire safety installation, for the building or structure, includes any thing required to comply with the performance solution.

Fire and Emergency Services Act 1990

1   Section 104RBA(1)(c), ‘certificate of classification’—

omit, insert—

certificate of occupancy

2   Section 104RBA(9), definition certificate of classification—

omit.

3   Section 104RBA(9)—

insert—

certificate of occupancy see the Building Act 1975, schedule 2.

Planning Act 2016

1   Section 122(1)(b), ‘certificate of classification’—

omit, insert—

certificate of occupancy

2   Section 131(2)(b)(ii), ‘certificate of classification’—

omit, insert—

certificate of occupancy

3   Section 274(4), definition affected person, paragraph (c)(ii), ‘certificate of classification’—

omit, insert—

certificate of occupancy

4   Schedule 2, definitions Building Code and certificate of classification—

omit.

5   Schedule 2—

insert—

Building Code has the same meaning as Building Code of Australia under the Building Act, section 12.

certificate of occupancy see the Building Act, schedule 2.

Private Health Facilities Act 1999

1   Section 44(2)(d), ‘certificate of classification’—

omit, insert—

certificate of occupancy

2   Schedule 3, definitions building code and certificate of classification—

omit.

3   Schedule 3—

insert—

building code has the same meaning as Building Code of Australia under the Building Act 1975, section 12.

certificate of occupancy see the Building Act 1975, schedule 2.

Public Health (Infection Control for Personal Appearance Services) Act 2003

1   Section 36(a), ‘certificate of classification’—

omit, insert—

certificate of occupancy

Queensland Building and Construction Commission Act 1991

1   Schedule 2, definition alternative solution—

omit.

2   Schedule 2—

insert—

performance solution see the Building Act 1975, schedule 2.

© State of Queensland 2020