Building Legislation Amendment (Fairer Payments on Jobsites and Other Matters) Act 2025 (Vic)

Building Legislation Amendment (Fairer Payments on Jobsites and Other Matters) Act 2025

No. 43 of 2025

TABLE OF PROVISIONS

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendment of Building and Construction Industry Security of Payment Act 2002

3Purpose

4Object of Act

5Section 4 amended

6Heading to Part 2 amended

7Section 9 substituted

8Amount of progress payment

9Sections 10A and 10B repealed

10Valuation of construction work and related goods and services

11Section 12 amended

12Effect of pay when paid provisions

13New section 13A inserted

14Heading to Part 3 amended

15Section 14 amended

16New sections 14A to 14D inserted

17Payment schedules

18Consequences of not paying claimant where no payment schedule

19Consequences of not paying claimant in accordance with payment schedule

20New Division 1A of Part 3 inserted

21Section 18 amended

22New section 18A inserted

23Adjudication responses

24Adjudication procedures

25Adjudicator's determination

26Correcting mistakes in determinations

27Section 28 amended

28Division 2A of Part 3 repealed

29Section 28M amended

30Section 28N repealed

31Section 28O amended

32Section 28P repealed

33Adjudication certificates

34Section 28R substituted

35Claimant may suspend work

36Section 29A repealed

37Application

38Priority of assignments

39Respondent to give information about principal

40Heading to Division 5 of Part 3 substituted

41Functions of an authorised nominating authority

42Authorised nominating authority to provide information

43Authorised nominating authority fees

44Ministerial guidelines

45Section 45 amended

46New section 45A inserted

47Liability of adjudicator

48Effect on Part on civil proceedings

49Functions of the Authority

50Recording and publishing of determinations

51Section 50 substituted

52Supreme Court—limitation of jurisdiction

53Regulations

54New sections 54 and 55 inserted

Part 3—Amendment of Building Act 1993

Division 1—Registration of building surveyors and building inspectors

55Definitions

56Registration

57New sections 171AA, 171AAB and 171AAC inserted

58Personal probity requirements

59Financial probity requirements

60Financial probity requirements

61Grounds for disciplinary action

62Functions of the Authority

63General regulation-making powers

64New sections 289 and 289A inserted

Division 2—Information statements

65Section 17A amended

Division 3—Codes of conduct for plumbers

66Definitions

67New Division 3A of Part 12A inserted

Division 4—Amendment of Building Act 1993 by Building Legislation Amendment (Buyer Protections) Act 2025

68Statute law revision

Part 4—Amendment of Environment Effects Act 1978

69Environment Effects Statement

70The Minister may call for supplementary statement

71Advice of Minister

72Decisions not to be made and works not to proceed until assessment considered

73Secretary to give advice and assistance

74New section 10A inserted

Part 5—Amendment of Heritage Act 2017

75Amendment of planning schemes

76Amendment of planning schemes

Part 6—Amendment of Planning and Environment Act 1987

77What can an enforcement order provide for?

78Statute law revision and other amendment

Part 7—Repeal of this Act

79Repeal of this Act

═════════════

Endnotes

1     General information

Building Legislation Amendment (Fairer Payments on Jobsites and Other Matters) Act 2025

No. 43 of 2025

[Assented to 13 November 2025]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1Purposes

The main purposes of this Act are—

(a)to amend the Building and Construction Industry Security of Payment Act 2002 in relation to—

(i)claims for payment of progress payments; and

(ii)claims for the release of performance securities; and

(iii)the process for the adjudication of disputes relating to progress payments and the release of performance securities; and

(iv)adjudication determinations; and

(v)unfair construction contract provisions; and

(vi)the service of documents; and

(b)to amend the Building Act 1993 in relation to—

(i)the registration of building surveyors and building inspectors; and

(ii)certain information statements given by relevant building surveyors; and

(iii)codes of conduct for plumbers; and

(iv)minor matters; and

(c)to amend the Environment Effects Act 1978 in relation to—

(i)the fees to be paid for certain assessments, advice, assistance and determinations under that Act; and

(ii)regulation-making powers; and

(d)to amend the Heritage Act 2017 as required following the enactment of the Climate Change and Energy Legislation Amendment (Renewable Energy and Storage Targets) Act 2024; and

(e)to amend the Planning and Environment Act 1987 in relation to enforcement orders.

2Commencement

(1)This Part, sections 60 and 61, Divisions 3 and 4 of Part 3 and Parts 4, 5, 6 and 7 come into operation on the day after the day on which this Act receives the Royal Assent.

(2)Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(3)If a provision referred to in subsection (2) does not come into operation before 1 September 2026, it comes into operation on that day.

PART 2—AMENDMENT OF BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 2002

3Purpose

In section 1 of the Building and Construction Industry Security of Payment Act 2002, after "progress payments" insert "and the release of performance securities".

4Object of Act

(1)In section 3(1) of the Building and Construction Industry Security of Payment Act 2002, after "progress payments" insert ", and is entitled to the release of a performance security,".

(2)For section 3(2) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(2)The means by which this Act ensures that a person is entitled to receive a progress payment or the release of a performance security is by granting a statutory entitlement to that payment or that performance security in accordance with this Act.".

(3)In section 3(3) of the Building and Construction Industry Security of Payment Act 2002—

(a)after "recover a progress payment" insert "or obtain the release of a performance security";

(b)in paragraph (a), for "making" substitute "serving";

(c)in paragraph (b), for "provision" substitute "serving";

(d)in paragraph (e), for "pay." substitute "pay; and";

(e)after paragraph (e) insert—

"(f)the serving of a performance security claim by the person claiming release of the performance security; and

(g)the serving of a performance security schedule by the person who must release the performance security; and

(h)the release of the whole or part of a performance security determined by the adjudicator; and

(i)the recovery of the whole or part of a performance security in the event of a failure to release the performance security.".

5Section 4 amended

(1)In the heading to section 4 of the Building and Construction Industry Security of Payment Act 2002, after "Definitions" insert "and interpretation".

(2)In section 4 of the Building and Construction Industry Security of Payment Act 2002, the definitions of adjudication review, adjudication review application, claimable variation, excluded amount, review adjudicator and review determination are repealed.

(3)In section 4 of the Building and Construction Industry Security of Payment Act 2002 insert the following definitions—

"adjudicated amount means—

(a)in relation to a progress payment claim—the amount that an adjudicator determines to be payable under section 23(1)(a) together with any amount that is required to be added to, or deducted from, that amount under section 28Q(3) or 45A(2); or

(b)in relation to a performance security claim—the amount that an adjudicator determines is required to be released under section 23(1A) together with any amount that is required to be added to, or deducted from, that amount under section 28Q(3) or 45A(2);

Note

Subsection (2) provides an interpretative provision that relates to the definition of adjudicated amount.

defects liability period, in relation to a construction contract, means the period that—

(a)starts on the day of the practical completion of construction work under the contract; and

(b)ends on the day on which work to rectify any omission or defect in the construction work (as required or directed under the construction contract or any Act or regulations) is completed;

GST has the same meaning as it has in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth;

named month means January, February, March, April, May, June, July, August, September, October, November or December;

performance bond means a security issued to or executed in favour of a party to a construction contract to secure the performance by another party of obligations under the contract and includes—

(a)a guarantee; and

(b)a bond;

performance security means a performance bond or retention money;

performance security claim means a claim referred to in section 17A;

performance security schedule means a schedule referred to in section 17E or 18A(2);

practical completion, in relation to construction work under a construction contract, means—

(a)if the contract provides for a day on which there is practical completion of the construction work, that day; or

(b)in any other case, the day on which—

(i)the construction work is completed as required under the construction contract; and

(ii)there are no omissions or defects in the construction work that materially prevent the intended use of the work;

release, in relation to a performance security, means—

(a)in the case of a performance bond, the return or cancellation of the bond; or

(b)in the case of retention money, payment of the money to the party who has carried out the construction work, or supplied related goods and services, under a construction contract;

retention money means—

(a)money (inclusive of GST) retained by a party to a construction contract, out of money payable by that party under the contract to another party to the contract, as security for the performance of obligations of that other party under the contract in relation to the carrying out of construction work, or the supply of related goods and services, by that other party; or

(b)money (inclusive of GST) paid to a party to a construction contract, by or on behalf of another party to the contract, and retained as security for the performance of obligations of that other party under the contract in relation to the carrying out of construction work, or the supply of related goods and services, by that other party;".

(4)In section 4 of the Building and Construction Industry Security of Payment Act 2002, in the definition of adjudication application, after "section 18" insert "or 18A".

(5)In section 4 of the Building and Construction Industry Security of Payment Act 2002, in the definition of adjudication fees omit "or review adjudicator".

(6)In section 4 of the Building and Construction Industry Security of Payment Act 2002, in the definition of business day—

(a)in paragraph (b), for "Victoria;" substitute "Victoria; or";

(b)after paragraph (b) insert—

"(c)a day during the period commencing on 22 December in any year and ending on 10 January in the following year;".

(7)In section 4 of the Building and Construction Industry Security of Payment Act 2002, in the definition of claimant, after "section 14" insert "or a performance security claim under section 17A(1)".

(8)In section 4 of the Building and Construction Industry Security of Payment Act 2002, for the definition of due date substitute—

"due date means—

(a)the day on which a progress payment becomes due and payable under section 12(1); or

(b)the day on which a performance security is due to be released under section 12(1A);".

(9)In section 4 of the Building and Construction Industry Security of Payment Act 2002, in the definition of payment schedule, after "section 15" insert "or 18(2A)".

(10)In section 4 of the Building and Construction Industry Security of Payment Act 2002, for the definition of progress payment substitute—

'progress payment means a payment that includes—

(a)the final payment for—

(i)construction work carried out under a construction contract; or

(ii)related goods and services supplied under the contract; or

(b)a single or one-off payment for—

(i)construction work carried out under a construction contract; or

(ii)related goods and services supplied under the contract; or

(c)a payment that is based on an event or date (known in the building and construction industry as a "milestone payment");

Note

The amount of a progress payment is calculated in accordance with sections 10 and 11.'.

(11)In section 4 of the Building and Construction Industry Security of Payment Act 2002, in the definition of respondent, for "section 14" substitute "section 15(1) or on whom a performance security claim is served under section 17E".

(12)At the end of section 4 of the Building and Construction Industry Security of Payment Act 2002 insert—

"(2)For the purposes of paragraph (b) of the definition of adjudicated amount—

(a)any amount that is required to be added to the adjudicated amount under section 28Q(3) or 45A(2)(a) is taken to be part of the amount of the performance security to be released; and

(b)any amount that is required to be deducted from the adjudicated amount under section 45A(2)(b) is taken to reduce the amount of the performance security to be released.".

6Heading to Part 2 amended

In the heading to Part 2 of the Building and Construction Industry Security of Payment Act 2002, after "payments" insert "and release of performance securities".

7Section 9 substituted

For section 9 of the Building and Construction Industry Security of Payment Act 2002 substitute—

"9   Rights to progress payments and release of performance securities

(1)A person is entitled under this Act to a progress payment under a construction contract if the person has undertaken to carry out construction work or to supply related goods and services under the contract.

(2)A person is entitled under this Act to the release of the whole or a part of a performance security under a construction contract.

(3)A person is entitled to the release of a performance security under subsection (2) whether a claim for the release is served alone or in conjunction with a payment claim for a progress payment.".

8Amount of progress payment

Section 10(2) and (3) of the Building and Construction Industry Security of Payment Act 2002 are repealed.

9Sections 10A and 10B repealed

Sections 10A and 10B of the Building and Construction Industry Security of Payment Act 2002 are repealed.

10Valuation of construction work and related goods and services

(1)For section 11(1)(b)(iii) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(iii)any variation agreed to by the parties to the contract by which the contract price for the work or any other rate or price set out in the contract is to be adjusted; and".

(2)For section 11(2)(b)(iii) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(iii)any variation agreed to by the parties to the contract by which the contract price for the goods and services or any other rate or price set out in the contract is to be adjusted; and".

11Section 12 amended

(1)For the heading to section 12 of the Building and Construction Industry Security of Payment Act 2002 substitute—

"Due date for payment of progress payment or release of performance security".

(2)For section 12(1) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(1)A progress payment under a construction contract becomes due and payable—

(a)subject to subsection (1B), on the day on which the payment becomes due and payable under the contract; or

(b)if the contract does not expressly provide for when a progress payment is due, on the day that is 10 business days after the earliest day on which a payment claim may be served under section 14A in relation to the progress payment.

(1A)A performance security under a construction contract is due to be released—

(a)subject to subsection (1B), on the day on which the performance security must be released under the contract; or

(b)if the contract does not expressly provide for when a performance security must be released, on the day that is 10 business days after the earliest day on which a performance security claim may be served under section 17B(1) in relation to the performance security.

(1B)A term or provision in a construction contract has no effect to the extent that it provides for the payment of a progress payment or the release of a performance security later than the day that is 20 business days after—

(a)a payment claim is served under Division 1 of Part 3 in relation to the progress payment; or

(b)a performance security claim is served under Division 1A of Part 3 in relation to the performance security.".

(3)After section 12(2) of the Building and Construction Industry Security of Payment Act 2002 insert—

"(3)Interest may be payable on the unpaid amount of a performance security that has become due to be released in accordance with subsection (1A) at the greater of the following rates—

(a)the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983;

(b)the rate specified under the construction contract.".

12Effect of pay when paid provisions

In section 13(2) of the Building and Construction Industry Security of Payment Act 2002, in the definition of pay when paid provision, for paragraph (c) substitute—

"(c)that otherwise makes any of the following contingent or dependent on the operation of another contract—

(i)the liability to pay money owing;

(ii)the due date for payment of money owing;

(iii)a person's right to claim money owing;

(iv)a person's right to claim the release of a performance security.".

13New section 13A inserted

After section 13 of the Building and Construction Industry Security of Payment Act 2002 insert—

"13A   Notice-based time bar provisions

(1)A notice-based time bar provision may be declared under this section to be unfair in relation to a particular entitlement under the contract if compliance with the provision—

(a)is not reasonably possible; or

(b)would be unreasonably onerous.

(2)A notice-based time bar provision may be declared to be unfair by—

(a)an adjudicator for the purposes of adjudicating matters under Part 3 in relation to the contract; or

(b)a court for the purposes of a proceeding for the recovery of money, the release of a performance security or the enforcement of other rights under the contract; or

(c)an arbitrator for the purposes of an arbitration proceeding under the contract or under any separate agreement between the parties to that contract; or

(d)an expert appointed by the parties to the contract for the purposes of a proceeding to determine a matter under the contract.

(3)A notice-based time bar provision, which is declared to be unfair under this section—

(a)has no effect on the particular entitlement that is the subject of an adjudication or proceeding in which it was declared to be unfair; and

(b)continues to have effect in other circumstances or proceedings arising under the contract or a related contract.

(4)The party in an adjudication process or proceeding who alleges that a notice-based time bar provision is unfair bears the onus of establishing that it is unfair.

(5)In determining whether a notice-based time bar provision is unfair, the adjudicator, court, arbitrator or expert must take the following matters into account—

(a)when the party required to give notice would reasonably have become aware of the last day on which notice could be given;

(b)when and how notice is required to be given;

(c)the relative bargaining power of each party in entering into the contract;

(d)if compliance with the provision is alleged to be unreasonably onerous— whether the matters set out in the notice are final and binding;

(e)that the parties to the contract have read and understood the terms of the contract;

(f)that the party required to give notice has the commercial and technical competence of a reasonably competent contractor;

(g)any matter prescribed by the regulations for the purposes of this subsection.

(6)In determining whether a notice-based time bar provision is unfair, the adjudicator, court, arbitrator or expert must not take into account the provisions of any related contract or the things that happened under any related contract.

(7)For the purposes of subsection (5)—

(a)it is conclusively presumed that the parties to the contract have read and understood the terms of the contract; and

(b)it is presumed that the party required to give notice has the commercial and technical competence of a reasonably competent contractor.

(8)In this section—

notice-based time bar provision means a provision of a construction contract that makes any of the following contingent or dependent on the provision of notice by a party to the contract—

(a)an entitlement to be paid for—

(i)construction work carried out or undertaken to be carried out; or

(ii)related goods and services supplied or undertaken to be supplied, under the contract;

(b)an extension of time for doing a thing that affects an entitlement referred to in paragraph (a);

(c)the release of a performance security;

notice includes any of the following—

(a)notice of the actual or estimated time of doing a thing;

(b)notice of the actual or estimated cost of doing a thing;

(c)notice of intention to do a thing;

(d)notice of the description of a thing;

(e)notice of a prescribed matter.".

14Heading to Part 3 amended

In the heading to Part 3 of the Building and Construction Industry Security of Payment Act 2002, after "payments" insert "and release of performance securities".

15Section 14 amended

(1)In the heading to section 14 of the Building and Construction Industry Security of Payment Act 2002, after "claims" insert "in respect of progress payments".

(2)In section 14(1) of the Building and Construction Industry Security of Payment Act 2002, after "payment claim" insert "in accordance with this Division".

(3)For section 14(3) and the note at the foot of section 14(3) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(3)The claimed amount may include any amount that the other person is liable to pay the claimant under section 29(4).".

(4)Section 14(4) to (9) of the Building and Construction Industry Security of Payment Act 2002 are repealed.

16New sections 14A to 14D inserted

After section 14 of the Building and Construction Industry Security of Payment Act 2002 insert—

"14A   Earliest time at which a payment claim may be served

(1)A payment claim may be served on a person—

(a)on and from the last day of—

(i)the named month in which the construction work was first carried out under a construction contract; and

(ii)each subsequent named month during which any further construction work is carried out under that contract; and

(b)on and from the last day of—

(i)the named month in which any related goods or services were first supplied under a construction contract; and

(ii)each subsequent named month during which any further related goods or services are supplied under that contract.

(2)Despite subsection (1), if a payment claim in respect of a progress payment relates to the carrying out of construction work or the supply of related goods or services—

(a)in the period starting on 1 December and ending on 21 December in any year, the payment claim may be served on a person on and from 22 December of that year; or

(b)in the period starting on 22 December and ending on 31 December in any year, the payment claim may be served on a person on and from 31 January in the following year.

(3)Despite subsections (1) and (2), if a construction contract provides that a payment claim may be served on a person in relation to the carrying out of construction work or supplying related goods or services on and from a day that is earlier than a day permitted under subsection (1) or (2) (as the case may be), the payment claim may be served on and from that day.

(4)Despite subsections (1) and (2), if a notice of termination is served on a party to a construction contract or a construction contract is terminated by agreement, a payment claim may be served on a person on and from the day on which the contract provides is the day on which the contract is terminated.

(5)If a claimant serves a payment claim on a person before the earliest day that a payment claim may be served under this section (the earliest day)—

(a)the payment claim is not invalid; and

(b)the payment claim is taken to be served on the earliest day; and

(c)the time within which the person may serve a payment schedule on the claimant does not commence until the earliest day.

Note

This subsection is relevant to calculating when a progress payment under a construction contract becomes due and payable under section 12(1)(b).

(6)The claimant's entitlement to serve a payment claim on a person is not affected by the termination, purported termination or expiry of the construction contract under which the person is or may be liable to make the payment.

14BCertain provisions in construction contract have no effect

(1)A provision of a construction contract has no effect to the extent that it—

(a)provides that the earliest day for service of a payment claim in respect of any type of progress payment must be on a day that is later than the last day of each named month in which the construction work was carried out or the related goods and services were supplied; or

(b)provides that a payment claim for a milestone payment (within the meaning of paragraph (c) of the definition of progress payment) must be served less frequently than once a month.

(2)Despite subsection (1)(a), a construction contract may provide that the earliest day for service of a payment claim relating to construction work carried out or related goods and services supplied in the period starting on 22 December and ending on 31 December, is 31 January in the following year.

14CLatest time at which payment claim may be served

A payment claim may be served no later than the day before the latest of the following—

(a)the date (if any) determined under the terms of the construction contract as the latest day on which the payment claim may be served;

(b)the date that is 6 months after the practical completion of all construction work to be carried out under the construction contract;

(c)the date that is 6 months after the supply of all related goods and services to be supplied under the construction contract.

14DFrequency of payment claims

(1)Unless a construction contract provides otherwise, a claimant may not serve on a person more than one payment claim in the named month in which construction work was carried out or undertaken to be carried out or related goods or services were supplied or undertaken to be supplied.

(2)Nothing in subsection (1) prevents the claimant from—

(a)serving a single payment claim on a person in respect of more than one progress payment; or

(b)including in a payment claim any amount that has been the subject of a previous payment claim and that has not been paid before the subsequent payment claim is served; or

(c)serving a payment claim in a named month for construction work carried out or undertaken to be carried out or related goods or services supplied or undertaken to be supplied in a previous named month.".

17Payment schedules

(1)In section 15(1) of the Building and Construction Industry Security of Payment Act 2002, for "providing a payment schedule to" substitute "serving a payment schedule on".

(2)Section 15(2)(c) of the Building and Construction Industry Security of Payment Act 2002 is repealed.

(3)In section 15(4)(b) of the Building and Construction Industry Security of Payment Act 2002, for "provide a payment schedule to" substitute "serve a payment schedule on".

18Consequences of not paying claimant where no payment schedule

(1)In section 16(1)(a) of the Building and Construction Industry Security of Payment Act 2002, for "provide a payment schedule to" substitute "serve a payment schedule on".

(2)In section 16(2)(b) of the Building and Construction Industry Security of Payment Act 2002, for "notice" substitute "a notice in the prescribed form (if any)".

(3)For section 16(4)(a) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(a)judgment in favour of the claimant is not to be given unless the court is satisfied of the existence of the circumstances referred to in subsection (1); and".

19Consequences of not paying claimant in accordance with payment schedule

(1)In section 17(1)(b) of the Building and Construction Industry Security of Payment Act 2002, for "provides a payment schedule to" substitute "serves a payment schedule on".

(2)In section 17(2)(b) of the Building and Construction Industry Security of Payment Act 2002, for "notice" substitute "a notice in the prescribed form (if any)".

20New Division 1A of Part 3 inserted

After Division 1 of Part 3 of the Building and Construction Industry Security of Payment Act 2002 insert—

"Division 1A—Claims for release of performance securities

17AClaims for release of performance securities

(1)A person referred to in section 9(2) who is or who claims to be entitled to the release of the whole or a part of a performance security (the claimant) may serve a claim on the person who, under the construction contract concerned, is or may be liable to release the performance security.

(2)A claim for the release of the whole or part of a performance security must—

(a)be in the prescribed form (if any); and

(b)identify the construction work or related goods and services to which the performance security and the claim relates; and

(c)specify the type and amount of performance security claimed; and

(d)state that it is made under this Act; and

(e)contain any other prescribed information.

(3)The claimant's entitlement to serve a performance security claim on a person is not affected by the termination, purported termination or expiry of the construction contract under which the person is or may be liable to release the performance security.

Note

Section 9(2) provides that a person is entitled to the release of the whole or part of a performance security.

17BEarliest time a performance security claim may be served

(1)A claim for the release of the whole or part of a performance security may be served on a person no earlier than the earliest of the following—

(a)a day that is at least 20 business days after the end of the relevant defects liability period for the construction work carried out or related goods or services supplied under the construction contract to which the performance security relates;

(b)on or after a day, or on or after the day of the occurrence of an event (if any), specified in the construction contract.

(2)If a claimant serves a performance security claim on a person before the earliest day that a performance security claim may be served under this section (the earliest day)—

(a)the performance security claim is not invalid; and

(b)the performance security claim is taken to be served on the earliest day; and

(c)the time within which the person may serve a performance security schedule on the claimant does not arise until the earliest day.

Note

Subsection (2) is relevant to calculating when a performance security under a construction contract becomes due to be released under section 12(1A)(b).

17CLatest time at which a performance security claim may be served

A performance security claim may be served no later than the latest of—

(a)the day (if any) determined under the construction contract as the latest day on which the performance security claim may be served; or

(b)the last day of the named month following the named month in which the last defects liability period set out in the construction contract (if any) ends.

17D Overriding contract provisions have no effect

A provision of a construction contract that purports to do any of the following has no effect—

(a)override the right of a claimant to serve a performance security claim under section 17A;

(b)provide that the earliest day on which a performance security claim may be served is before the earliest day referred to in section 17B;

(c)provide that the latest day on which a performance security claim may be served is after the latest day referred to in section 17C.

17EPerformance security schedules

(1)A person on whom a performance security claim is served (the respondent) may serve a performance security schedule on the claimant.

(2)A performance security schedule—

(a)must identify the performance security to which it relates; and

(b)must identify the amount of the performance security that is proposed to be released if it is not the same amount of the performance security that relates to the performance security claim; and

(c)must indicate when the respondent proposes to release the performance security, or any part of the performance security; and

(d)must be in the relevant prescribed form (if any); and

(e)must contain the prescribed information (if any).

(3)If the respondent proposes to release less than the amount of the performance security that relates to the performance security claim, the schedule must indicate why the amount to be released is less, and the respondent's reasons for this.

(4)The respondent becomes liable to release the amount of the performance security that relates to the performance security claim on the due date for the release of the performance security if—

(a)a claimant serves a performance security claim for that amount of the performance security on the respondent; and

(b)the respondent does not serve a performance security schedule on the claimant within whichever of the following times expires earlier—

(i)the time required by the relevant construction contract; or

(ii)10 business days after the performance security claim is served.

17FConsequences of not releasing performance security where no performance security schedule

(1)This section applies if the respondent—

(a)becomes liable under section 17E(4) to release the whole or part of the performance security; and

(b)fails to release the whole or part of the performance security on the due date for the release of the performance security to which the claim relates.

(2)The claimant may—

(a)apply to a court of competent jurisdiction for an order that the respondent must release the whole or part of the performance security to which the claim relates; or

(b)make an adjudication application under section 18A(1) in relation to the performance security claim.

(3)If the claimant commences proceedings under subsection (2)(a) for an order that the respondent must release the whole or part of the performance security to which the claim relates—

(a)judgment in favour of the claimant is not to be given unless the court is satisfied of the existence of the circumstances referred to in subsection (1); and

(b)the respondent is not, in those proceedings, entitled—

(i)to bring any cross-claim against the claimant; or

(ii)to raise any defence in relation to matters arising under the construction contract.

17GConsequences of not releasing whole or part of performance security in accordance with performance security schedule

(1)This section applies if—

(a)a claimant has served a performance security claim on a respondent; and

(b)the respondent has served a performance security schedule on the claimant within whichever of the following times expires earlier—

(i)within the time required by the relevant construction contract;

(ii)within 10 business days after the performance security claim is served; and

(c)the performance security schedule indicates the respondent proposes to release the whole or part of the performance security; and

(d)the respondent fails to release the whole or part of the performance security indicated in the performance security schedule on or before the due date for release of the performance security to which the performance security claim relates.

(2)The claimant may—

(a)apply to a court of competent jurisdiction for an order that the respondent must release the whole or part of the performance security to which the performance security claim relates; or

(b)make an adjudication application under section 18A(1) in relation to the performance security claim.

(3)If the claimant commences a proceeding under subsection (2)(a) for an order that the respondent must release the whole or part of the performance security to which the claim relates—

(a)judgment in favour of the claimant is not to be given unless the court is satisfied of the existence of the circumstances described in subsection (1); and

(b)the respondent is not, in those proceedings, entitled—

(i)to bring any cross-claim against the claimant; or

(ii)to raise any defence in relation to matters arising under the construction contract.

17HEntitlement to have recourse to a performance security

(1)A party to a construction contract is not entitled to have recourse to the whole or a part of a performance security under a construction contract unless—

(a)the party has served the party who provided the performance security under the contract with a notice of intention to have recourse to the performance security; and

(b)at least 5 business days have passed since the party served that notice or, if the contract provides for a longer period, that period has passed.

(2)A notice of intention to have recourse to a performance security must—

(a)be in writing in the prescribed form (if any); and

(b)identify the construction contract and the provisions of the contract that the party relies on to have recourse to the performance security; and

(c)if the intention is not to have recourse to the whole of the performance security, state the amount of the performance security to which the party intends to have recourse; and

(d)describe the circumstances that entitle the party to have recourse to the performance security.

(3)The requirements in subsections (1) and (2) are taken to form part of every construction contract and are to have effect despite any other provision of the contract that purports to override these requirements.".

21Section 18 amended

(1)In the heading to section 18 of the Building and Construction Industry Security of Payment Act 2002, for "applications" substitute "applications—payment claims".

(2)In section 18(1) of the Building and Construction Industry Security of Payment Act 2002—

(a)for "A claimant may" substitute "Subject to subsection (2), a claimant may";

(b)in paragraph (a), for "provides a payment schedule" substitute "serves a payment schedule on the claimant";

(c)in paragraph (b), for "provide a payment schedule to" substitute "serve a payment schedule on".

(3)For section 18(2) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(2)An adjudication application to which subsection (1)(b) applies may not be made unless the claimant has served a notice in the prescribed form (if any) on the respondent within 10 business days after the due date for payment informing the respondent that—

(a)the claimant intends to apply for adjudication of the payment claim; and

(b)the respondent may serve a payment schedule on the claimant in response to the notice within 5 business days after receiving the notice.

(2A)A respondent who receives a notice under subsection (2) may serve on the claimant a payment schedule that complies with the requirements in section 15(2) and (3) within 5 business days after receiving the notice.".

(4)In section 18(3) of the Building and Construction Industry Security of Payment Act 2002—

(a)in paragraph (b), for "made to" substitute "lodged with";

(b)in paragraph (c), for "made" substitute "lodged";

(c)in paragraph (d), for "made" substitute "lodged";

(d)in paragraph (e)—

(i)for "made" substitute "lodged";

(ii)for "2 day" substitute "5 business‑day".

(5)For section 18(5) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(5)The claimant must serve a copy of the adjudication application on the respondent within 3 business days after lodging the application with the authorised nominating authority.".

(6)In section 18(7) of the Building and Construction Industry Security of Payment Act 2002, for "to which an adjudication application is made" substitute "with which an adjudication application is lodged".

22New section 18A inserted

After section 18 of the Building and Construction Industry Security of Payment Act 2002 insert—

"18A   Adjudication applications—performance security claims

(1)Subject to subsection (2), a claimant may apply for adjudication of a performance security claim if—

(a)the respondent serves a performance security schedule on the claimant under Division 1A but—

(i)the schedule indicates that the amount of the performance security that the respondent agrees to release is less than the amount claimed in the performance security claim; or

(ii)the respondent fails to release the whole or any part of the scheduled amount to the claimant by the due date for release of the amount claimed; or

(b)the respondent fails to serve a performance security schedule on the claimant under Division 1A and fails to release the whole or any part of the claimed amount by the due date for release of the amount.

(2)An adjudication application under subsection (1)(b) may not be made unless the claimant has served a notice in the prescribed form (if any) on the respondent within 10 business days after the due date for release of the amount claimed informing the respondent that—

(a)the claimant intends to apply for adjudication of the performance security claim; and

(b)the respondent may serve a performance security schedule on the claimant within 5 business days after receiving the notice.

(3)A respondent who receives a notice under subsection (2) may serve on the claimant a performance security schedule that complies with the requirements in section 17E(2) and (3) within 5 business days after receiving the notice.

(4)An adjudication application—

(a)must be in writing; and

(b)subject to subsection (5), must be lodged with an authorised nominating authority chosen by the claimant; and

(c)in the case of an application under subsection (1)(a)(i), must be lodged within 10 business days after the claimant receives the performance security schedule; and

(d)in the case of an application under subsection (1)(a)(ii), must be lodged within 10 business days after the due date for release of the performance security; and

(e)in the case of an application under subsection (1)(b), must be lodged within 5 business days after the end of the 5 business-day period referred to in subsection (2)(b); and

(f)must identify the performance security claim and the performance security schedule (if any) to which it relates; and

(g)must be accompanied by the application fee (if any) determined by the authorised nominating authority; and

(h)may contain any submissions relevant to the application that the claimant chooses to include.

(5)If the construction contract to which the payment claim relates lists 3 or more authorised nominating authorities, the application must be made to one of those authorities chosen by the claimant.

(6)The claimant must serve a copy of the adjudication application on the respondent within 3 business days after lodging the application with the authorised nominating authority.

(7)It is a duty of an authorised nominating authority with which an adjudication application is lodged to refer the application to an adjudicator as soon as practicable.

(8)An adjudicator to whom an application is referred under subsection (7) must be a person who under section 19 is eligible to be an adjudicator.".

23Adjudication responses

(1)Section 21(2)(ca) of the Building and Construction Industry Security of Payment Act 2002 is repealed.

(2)In section 21(2)(d) of the Building and Construction Industry Security of Payment Act 2002, after "include" insert "but may not contain a reason why the respondent did not—

(i)include the whole of the claimed amount in the payment schedule served on the claimant under section 15 or 18(2A) if that reason was not set out in the payment schedule; or

(ii)offer to release the whole or part of the performance security in the performance security schedule served on the claimant under section 17E or 18A(3) if that reason was not set out in the performance security schedule.".

(3)For section 21(2A) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(2A)The respondent may lodge an adjudication response if the respondent has served on the claimant—

(a)a payment schedule within the time specified in section 15(4)(b) or 18(2A); or

(b)a performance security schedule within the time specified in section 17E(4)(b) or 18A(3).

(4)For section 21(2B) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(2B)A payment schedule or a performance security schedule referred to in subsection (2A) may be attached to an adjudication response lodged under that subsection.".

(5)For section 21(3) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(3)If the respondent lodges an adjudication response with the adjudicator, the respondent must serve a copy of the response on the claimant within 3 business days after lodging the response with the adjudicator.".

24Adjudication procedures

(1)In section 22(2)(a) of the Building and Construction Industry Security of Payment Act 2002, after "relevant principal" insert "(within the meaning of section 21(4))".

(2)For section 22(4) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(4)Subject to subsections (1) and (3), an adjudicator must determine an adjudication application as expeditiously as possible and, in any case—

(a)within 10 business days after the latest of the following—

(i)the day on which the adjudicator is taken to have been appointed to determine the adjudication application under section 20;

(ii)the latest day on which the respondent may lodge an adjudication response with the adjudicator under section 21(1); or

(b)within any further time, not exceeding 20 business days, after the period under paragraph (a), to which the claimant and the respondent agree.".

(3)In section 22(4A) of the Building and Construction Industry Security of Payment Act 2002, after "claimant" insert "and a respondent".

(4)After section 22(4A) of the Building and Construction Industry Security of Payment Act 2002 insert—

"(4B)An adjudicator's determination of an adjudication application is not invalid solely because it is made after the time allowed for determining the adjudication application under subsection (4).".

(5)After section 22(5) of the Building and Construction Industry Security of Payment Act 2002 insert—

"(5AA)In the case of a payment claim, a submission under subsection (5) must not contain a reason as to why the respondent did not pay the whole or any part of the claimed amount if—

(a)that reason was not set out in a payment schedule served by the respondent on the claimant; or

(b)the respondent did not serve a payment schedule on the claimant.

(5AB)In the case of a performance security claim, a submission under subsection (5) must not contain a reason as to why the respondent did not offer to release the whole or any part of a claimed performance security if—

(a)that reason was not set out in a performance security schedule served by the respondent on the claimant; or

(b)the respondent did not serve a performance security schedule on the claimant.".

25Adjudicator's determination

(1)In section 23(1)(a) of the Building and Construction Industry Security of Payment Act 2002 omit "(the adjudicated amount)".

(2)The note at the foot of section 23(1) of the Building and Construction Industry Security of Payment Act 2002 is repealed.

(3)After section 23(1) of the Building and Construction Industry Security of Payment Act 2002 insert—

"(1A)An adjudicator is to determine—

(a)whether the whole or part of a performance security must be released by the respondent to the claimant if the adjudicator is satisfied that—

(i)all or the relevant part of the obligations secured by the performance security have been performed by the claimant; or

(ii)the performance security is due for release in accordance with the construction contract; and

(b)the amount of the performance security that must be released by the respondent to the claimant; and

(c)the date by which the respondent must release the amount of the performance security to the claimant; and

(d)the rate of interest payable on the amount of the performance security that must be released in accordance with section 12(3).".

(4)After section 23(2)(d) of the Building and Construction Industry Security of Payment Act 2002 insert—

"(da)if there is a performance security claim to which the application relates—

(i)any performance security schedule to which the claim relates; and

(ii)all submissions (including relevant documentation) that have been made by the claimant in support of the performance security claim;".

(5)For section 23(2A) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(2A)In determining an adjudication application, the adjudicator must not take into account—

(a)in the case of a payment claim—a reason as to why the respondent did not pay the whole or any part of the claimed amount if—

(i)that reason was not set out in a payment schedule served by the respondent on the claimant; or

(ii)the respondent did not serve a payment schedule on the claimant; or

(b)in the case of a performance security claim—a reason as to why the respondent did not offer to release the whole or any part of a claimed performance security if—

(i)that reason was not set out in a performance security schedule served by the respondent on the claimant; or

(ii)the respondent did not serve a performance security schedule on the claimant; or

(c)any other matter that is prohibited by this Act from being taken into account.".

(6)In section 23(2B) of the Building and Construction Industry Security of Payment Act 2002 omit "amount or" (where twice occurring).

26Correcting mistakes in determinations

Section 24(4) of the Building and Construction Industry Security of Payment Act 2002 is repealed.

27Section 28 amended

(1)In the heading to section 28 of the Building and Construction Industry Security of Payment Act 2002 omit "refused or".

(2)In section 28(1)(a) of the Building and Construction Industry Security of Payment Act 2002, for "after the application is made" substitute "after the day on which the adjudicator receives the adjudication application".

(3)In section 28(2)(a) of the Building and Construction Industry Security of Payment Act 2002, for ", by notice in writing served on the adjudicator or" substitute "by notice in writing in the prescribed form (if any) served on the adjudicator and".

(4)In section 28(2)(b) of the Building and Construction Industry Security of Payment Act 2002, after "section 18" insert "in respect of a payment claim or section 18A in respect of a performance security claim".

(5)After section 28(2) of the Building and Construction Industry Security of Payment Act 2002 insert—

"(2A)The authorised nominating authority must—

(a)give a copy of a withdrawal notice under subsection (2) to the Authority as soon as is practicable; and

(b)inform the Authority of every adjudication application that is not determined by the adjudicator and the reasons why the application was not determined.".

(6)In section 28(3) of the Building and Construction Industry Security of Payment Act 2002, for "may be made" substitute "in respect of a payment claim may be lodged".

(7)After section 28(3) of the Building and Construction Industry Security of Payment Act 2002 insert—

"(3A)Despite section 18A(4)(c), (d) and (e), a new adjudication application in respect of a performance security claim may be lodged at any time within 5 business days after the claimant becomes entitled to withdraw the previous adjudication application under subsection (2).".

28Division 2A of Part 3 repealed

Division 2A of Part 3 of the Building and Construction Industry Security of Payment Act 2002 is repealed.

29Section 28M amended

(1)In the heading to section 28M of the Building and Construction Industry Security of Payment Act 2002, after "pay" insert "or release".

(2)For section 28M(1) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(1)If an adjudicator determines that a respondent is required to pay or release an adjudicated amount, the respondent must pay or release that amount to the claimant on or before the relevant date.".

30Section 28N repealed

Section 28N of the Building and Construction Industry Security of Payment Act 2002 is repealed.

31Section 28O amended

(1)In the heading to section 28O of the Building and Construction Industry Security of Payment Act 2002, after "paying" insert "or releasing".

(2)In section 28O(1) of the Building and Construction Industry Security of Payment Act 2002 omit "or 28N".

(3)In section 28O(1)(a) of the Building and Construction Industry Security of Payment Act 2002 omit "or the adjudication review application".

(4)In section 28O(1)(b) of the Building and Construction Industry Security of Payment Act 2002, for "notice" substitute "a notice in the prescribed form (if any)".

(5)For section 28O(3) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(3)If the respondent fails to release the whole or any part of an adjudicated amount relating to a performance security in accordance with section 28M, the claimant may request the authorised nominating authority to whom the adjudication application was made to provide an adjudication certificate under section 28Q.".

(6)Sections 28O(4) and (5) of the Building and Construction Industry Security of Payment Act 2002 are repealed.

32Section 28P repealed

Section 28P of the Building and Construction Industry Security of Payment Act 2002 is repealed.

33Adjudication certificates

(1)For section 28Q(1) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(1)An adjudication certificate provided by an authorised nominating authority on a request under this Division must state that it is made under this Act.

(1A)An adjudication certificate relating to a payment claim must specify—

(a)the name of the person requesting the certificate; and

(b)the adjudicated amount that must be paid; and

(c)the name of the person who is liable to pay the adjudicated amount; and

(d)the date on which payment of the adjudicated amount was due to be paid to the person requesting the certificate.

(1B)An adjudication certificate relating to a performance security claim must specify—

(a)the name of the person requesting the certificate; and

(b)the adjudicated amount of the performance security that must be released; and

(c)the name of the person who is liable to release the adjudicated amount; and

(d)the type of performance security and, if it is a performance bond, the name and address of the provider of the security; and

(e)the date on which the adjudicated amount was due to be released to the person requesting the certificate.".

(2)In section 28Q(2) of the Building and Construction Industry Security of Payment Act 2002, for "amount payable under section 28M or 28N" insert "adjudicated amount payable or to be released".

(3)For section 28Q(3) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(3)The following amounts are added to, and become part of, the adjudicated amount—

(a)any amount of interest that is specified in the adjudication certificate to be paid by the respondent;

(b)the amount of any fee charged by the authorised nominating authority for providing the certificate.".

(4)At the foot of section 28Q(3) of the Building and Construction Industry Security of Payment Act 2002 insert—

"Note

See also section 45A(2) for adjudication fee amounts that may be added to, or deducted from, the adjudicated amount.".

(5)Section 28Q(4) to (7) of the Building and Construction Industry Security of Payment Act 2002 are repealed.

34Section 28R substituted

For section 28R of the Building and Construction Industry Security of Payment Act 2002 substitute—

"28R   Proceedings to recover adjudicated amount payable or to be released under section 28M

(1)A claimant who has been provided with an adjudication certificate under section 28Q(1A) or (1B) may file the adjudication certificate as a judgment for a debt due to the claimant in a court of competent jurisdiction for the unpaid portion of the adjudicated amount payable or to be released under section 28M(1).

(2)An adjudication certificate may not be filed in a court under subsection (1) unless the claimant provides with the adjudication certificate an affidavit by the claimant stating that the whole or any part of the adjudicated amount payable or to be released under section 28M(1) has not been paid at the time the certificate is filed.

(3)If the affidavit indicates that part of the adjudicated amount payable or to be released under section 28M(1) has been paid or released, the judgment is for the unpaid portion of that amount only.

(4)If the respondent commences a proceeding to have the judgment set aside, the respondent—

(a)is not entitled—

(i)to commence a cross-claim against the claimant; or

(ii)to raise any defence in relation to matters arising under the construction contract; or

(iii)to challenge the adjudication determination; and

(b)is required to pay into the court as security the unpaid portion of the adjudicated amount payable or to be released under section 28M(1) pending the final determination of the proceeding.

(5)Nothing in this section affects the operation of any Act requiring the payment of interest in respect of a judgment debt.".

35Claimant may suspend work

In section 29(2) of the Building and Construction Industry Security of Payment Act 2002—

(a)in paragraph (a), for "17(1), 28M or 28N," substitute "17(1) or 28M,".

(b)in paragraph (b), for "17(1), 28M or 28N" substitute "17(1) or 28M".

36Section 29A repealed

Section 29A of the Building and Construction Industry Security of Payment Act 2002 is repealed.

37Application

In section 30 of the Building and Construction Industry Security of Payment Act 2002—

(a)in paragraph (a) omit "or a review adjudicator";

(b)in paragraph (b), for "section 28M or 28N" substitute "section 28M(1)".

38Priority of assignments

(1)In section 36(2) of the Building and Construction Industry Security of Payment Act 2002—

(a)for "All notices" substitute "Despite section 50(2), all notices";

(b)for "7 days" substitute "5 business days".

(2)In section 36(3) of the Building and Construction Industry Security of Payment Act 2002, for "that 7 day period" substitute "the 5 business day period".

39Respondent to give information about principal

(1)In section 41(1) of the Building and Construction Industry Security of Payment Act 2002, for "respondent must, on the demand of the claimant, supply" substitute "respondent, within 10 days business days after the demand of the claimant, must give".

(2)For section 41(2) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(2)A person must not give a person a notice under this section knowing that it is false or misleading in a material particular.

Penalty:60 penalty units, in the case of a natural person;

300 penalty units, in the case of a body corporate.".

(3)After section 41(2) of the Building and Construction Industry Security of Payment Act 2002 insert—

"(3)A person must not fail to give a person a notice under this section.

Penalty:60 penalty units, in the case of a natural person;

300 penalty units, in the case of a body corporate.".

40Heading to Division 5 of Part 3 substituted

For the heading to Division 5 in Part 3 of the Building and Construction Industry Security of Payment Act 2002 substitute—

"Division 5—Authorised nominating authorities and adjudicators".

41Functions of an authorised nominating authority

(1)Section 43A(c) and (e) of the Building and Construction Industry Security of Payment Act 2002 are repealed.

(2)For section 43A(d) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(d)to serve copies of adjudication determinations on certain persons; and".

(3)In section 43A(g) of the Building and Construction Industry Security of Payment Act 2002, for "this Division" substitute "this Part".

42Authorised nominating authority to provide information

In section 43B(2)(a) of the Building and Construction Industry Security of Payment Act 2002 omit "and appointment of review adjudicators".

43Authorised nominating authority fees

In section 43C(1) of the Building and Construction Industry Security of Payment Act 2002 omit "or an adjudication review application".

44Ministerial guidelines

(1)For section 44(1)(b) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(b)appropriate fees that may be charged by an authorised nominating authority or an adjudicator.".

(2)After section 44(1) of the Building and Construction Industry Security of Payment Act 2002 insert—

"(1A)Guidelines relating to fees—

(a)may specify the fees or specify maximum or minimum fees; and

(b)may specify different fees for different classes of cases.

(1B)Authorised nominating authorities and adjudicators, in determining fees under this Act, must have regard to the guidelines under this section in relation to fees.".

45Section 45 amended

(1)In the heading to section 45 of the Building and Construction Industry Security of Payment Act 2002 omit "and review adjudicator's".

(2)Section 45(1) of the Building and Construction Industry Security of Payment Act 2002 is repealed.

(3)For section 45(5) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(5)An adjudicator is not entitled to be paid any fees or expenses in connection with the determination of an adjudication application if—

(a)the adjudicator fails to make a decision on the application (otherwise than because the disputed claim between the claimant and respondent is resolved) within the time allowed by section 22(4); or

(b)the application is withdrawn by the claimant under section 28(2).".

(4)Section 45(7) and (8) of the Building and Construction Industry Security of Payment Act 2002 are repealed.

46New section 45A inserted

After section 45 of the Building and Construction Industry Security of Payment Act 2002 insert—

"45A   Consequences of a party paying another party's share of adjudication fees

(1)If a party to an adjudication fails to pay the party's required contribution to the total amount of the adjudication fees, the other party may elect to pay the total amount of the adjudication fees.

(2)If under subsection (1)—

(a)the claimant elects to pay the respondent's contribution to the total amount of adjudication fees, the adjudicator must determine that that amount is to be added to the adjudicated amount and the total of those amounts is then taken to be the adjudicated amount; or

(b)the respondent elects to pay the claimant's contribution to the total amount of adjudication fees, the adjudicator must determine that that amount is to be deducted from the adjudicated amount and the remaining adjudicated amount is then taken to be the adjudicated amount.".

47Liability of adjudicator

In section 46 of the Building and Construction Industry Security of Payment Act 2002 omit "(including a review adjudicator)".

48Effect on Part on civil proceedings

In section 47 of the Building and Construction Industry Security of Payment Act 2002—

(a)in subsection (3)(a) and (b), after "paid" insert "or released";

(b)in subsection (4), after "paid" insert "or released".

49Functions of the Authority

(1)In section 47A(c) and (d) of the Building and Construction Industry Security of Payment Act 2002 omit "and review determinations".

(2)After section 47A(d) of the Building and Construction Industry Security of Payment Act 2002 insert—

"(da)to provide information and other materials to educate—

(i)persons who carry out construction work or who supply related goods and services under construction contracts with respect to their rights and obligations under this Act; and

(ii)authorised nominating authorities and adjudicators who perform functions under this Act; and

(db)to promote Victoria's security of payment laws to the building and construction sector (including principals);".

50Recording and publishing of determinations

(1)In section 47C(1) of the Building and Construction Industry Security of Payment Act 2002 omit "or review determinations".

(2)In section 47C(2) of the Building and Construction Industry Security of Payment Act 2002 omit "or 28J".

51Section 50 substituted

For section 50 of the Building and Construction Industry Security of Payment Act 2002 substitute—

"50   Service of documents

(1)A document that by or under this Act is authorised or required to be served on, given to or lodged with a person may be served on, given to or lodged with the person—

(a)in the manner (if any) required by the construction contract if it is reasonably practicable to do so; or

(b)in any other case—

(i)by personally delivering the document to the person; or

(ii)by leaving the document for the person at the person's ordinary place of business; or

(iii)by sending the document by post addressed to the person to the person's ordinary place of business; or

(iv)in any other manner instructed by the person as being an acceptable manner for the service, giving or lodging of the document; or

(v)in the prescribed manner.

(2)The time at which a document is taken to have been served on, given to or lodged with a person under subsection (1) is taken to be—

(a)in the case of delivery in person—

(i)at the time at which the document is delivered to the person; or

(ii)if the person refuses to accept the document, when the document is put down in the person's presence and the person is informed of the nature of the document; or

(b)in the case of a document left for the person at the person's ordinary place of business, when the document is left at the place of business with a person who appears to be employed by the business; or

(c)in the case of a document that is posted—

(i)7 business days after the day on which the document is posted; or

(ii)if the document is delivered to the person on an earlier day, on that day; or

(d)in the case of a prescribed manner for the serving, giving or lodgement of a document, at the prescribed time.

Note

A document that is sent to a person by email or any other form of electronic communication is taken to be served on a person at the time the email or other form of electronic communication is received by the person. See section 13A of the Electronic Transactions (Victoria) Act 2000.

(3)A document served on, given to or lodged with an agent of a person in accordance with this section is taken to have been served on, given to, or lodged with the person.".

52Supreme Court—limitation of jurisdiction

(1)For section 51(1) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(1)It is the intention of section 46, as amended by section 47 of the Building Legislation Amendment (Fairer Payments on Jobsites and Other Matters) Act 2025, to alter or vary section 85 of the Constitution Act 1975.".

(2)For section 51(2) of the Building and Construction Industry Security of Payment Act 2002 substitute—

"(2)It is the intention of section 28R, as substituted by section 34 of the Building Legislation Amendment (Fairer Payments on Jobsites and Other Matters) Act 2025, to alter or vary section 85 of the Constitution Act 1975.".

53Regulations

After section 52(1)(b) of the Building and Construction Industry Security of Payment Act 2002 insert—

"(ba)prescribing a provision or a class of provision in a construction contract or in a class of construction contract that is to be taken to be of no effect;

(bb)prescribing circumstances in which a provision referred to in paragraph (ba) may be excepted from having no effect;".

54New sections 54 and 55 inserted

After section 53 of the Building and Construction Industry Security of Payment Act 2002 insert—

"54   Transitional provisions—Building Legislation Amendment (Fairer Payments on Jobsites and Other Matters) Act 2025

(1)Subject to this section, this Act as amended by Part 2 of the amending Act applies in respect of a construction contract that is entered into before, on or after the commencement of Part 2 of the amending Act.

(2)Subject to this section, the amendments (including repeals) made to Part 3 by Part 2 of the amending Act do not apply in respect of a payment claim served under section 14, or an adjudication application made under section 18 but not determined, before the commencement of Part 2 of the amending Act.

(3)Despite subsection (2), section 28R as substituted by section 34 of the amending Act applies to an adjudication certificate relating to a payment claim that is served under Part 3 before, on or after the commencement of section 34 of the amending Act.

(4)Section 41(1), as amended by section 39(1) of the amending Act, applies only in relation to an adjudication determination made under section 23 after the commencement of section 39(1) of the amending Act.

(5)In regard to the amendment made to section 41(2) by section 39(2) of the amending Act—

(a)the amendment applies only to an offence alleged to have been committed under section 41(2) on or after the commencement of section 39(2) of the amending Act; and

(b)if an offence under section 41(2) is alleged to have been committed between 2 dates, one before and one after the commencement of section 39(2) of the amending Act, the offence is alleged to have been committed before the commencement of section 39(2) of the amending Act.

(6)   The repeal of Division 2A of Part 3 by section 28 of the amending Act and the amendments (including repeals) made consequent to that repeal by the amending Act do not apply in respect of an adjudication review application that is made but not determined before the commencement of section 28 of the amending Act.

(7)Despite subsection (2), section 28 as amended by section 27 of the amending Act, applies in respect of an adjudication application that is made under section 18 and not determined before the commencement of section 27 of the amending Act.

(8)Despite subsection (2), section 28Q as amended by section 33 of the amending Act, applies in respect of a payment claim that is served under Part 3 before, on or after the commencement of section 33 of the amending Act.

(9)Despite subsection (2), section 50 as substituted by section 51 of the amending Act applies in respect of any document that is required to be served on, given to or lodged with a person on or after the commencement of section 51 of the amending Act.

(10)Despite subsection (1), a regulation made under section 52(1)(ba) or (bb) as inserted by section 53 of the amending Act does not apply to a provision of a construction contract entered into before the commencement of any such regulation.

(11)In this section—

amending Act means the Building Legislation Amendment (Fairer Payments on Jobsites and Other Matters) Act 2025.

55Transitional regulations—Building Legislation Amendment (Fairer Payments on Jobsites and Other Matters) Act 2025

(1)The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of the Building Legislation Amendment (Fairer Payments on Jobsites and Other Matters) Act 2025 (including the repeals and amendments made by that Act).

(2)Regulations made under this section may—

(a)have a retrospective effect to a day on or from the day on which the Building Legislation Amendment (Fairer Payments on Jobsites and Other Matters) Act 2025 receives the Royal Assent; and

(b)be of limited or general application; and

(c)leave any matter or thing to be decided by a specified person or class of person; and

(d)provide for the exemption of persons or classes of person from any of the regulations made under this section.

(3)Regulations made under this section have effect despite anything to the contrary in any Act (other than this Act or the Charter of Human Rights and Responsibilities Act 2006) or in any subordinate instrument.

(4)This section is repealed on the second anniversary of the day on which it comes into operation.".

PART 3—AMENDMENT OF BUILDING ACT 1993

Division 1—Registration of building surveyors and building inspectors

55Definitions

In section (3)(1) of the Building Act 1993 insert the following definitions—

"approved competence standard means a standard approved by the Authority under section 171AA(1)(a) in respect of a prescribed competence criterion;

approved person means a person approved by the Authority under section 171AAB;

approved prescribed qualification means a prescribed qualification approved by the Authority under section 171AA(1)(b);

prescribed competence criteria means prescribed criteria that an applicant for registration in a category or class of building surveyor or building inspector must meet to be registered under section 171(1)(aa);

qualification includes a degree, diploma, certificate, accreditation, authority, examination, assessment or period of training;".

56Registration

(1)In section 171(1)(a) of the Building Act 1993, for "(ab) or (ac)" substitute "(aa), (ab) or (ac)".

(2)After section 171(1)(a) of the Building Act 1993 insert—

"(aa)in the case of registration of a building surveyor or a building inspector, if the applicant is a natural person, the applicant meets the prescribed competence criteria that relate to the category or class of building surveyor or building inspector by—

(i)holding or having attained or completed—

(A)the approved prescribed qualification for registration; and

(B)the prescribed experience for registration; or

(ii)unless the regulations otherwise provide in relation to a particular category or class, holding or having attained or completed a qualification (including a prescribed qualification) and experience that the Authority considers are equivalent to the approved prescribed qualification and the prescribed experience for registration referred to in subparagraph (i); and ".

(3)After section 171(2) of the Building Act 1993 insert—

"(2AA)If the Authority determines to refuse an application for registration under subsection (1)(aa) solely on the ground that the applicant does not meet the requirements in that subsection, the Authority may advise the applicant of any approved qualification or experience or both that the applicant must hold, attain or complete in order to meet the prescribed competence criteria for registration under subsection (1)(aa).".

57New sections 171AA, 171AAB and 171AAC inserted

After section 171 of the Building Act 1993 insert—

"171AA   Approvals by the Authority relating to the registration of building surveyors and building inspectors

(1)The Authority, by notice published in the Government Gazette—

(a)must approve—

(i)a competence standard that sets out the skills, experience and knowledge that an applicant for registration as a building surveyor or building inspector must have to meet a prescribed competence criterion; and

(ii)a prescribed qualification for the purposes of section 171(1)(aa)(i)(A); and

(b)may approve a qualification for the purposes of section 171(2AA).

(2)The Authority may impose a condition on an approval under subsection (1).

(3)An approval under subsection (1) takes effect—

(a)on the day on which the notice of the approval is published in the Government Gazette; or

(b)on a later day specified in the notice.

(4)An approved competence standard must be published in full—

(a)in the Government Gazette; and

(b)on the Authority's website.

(5)The Authority must keep a list of any current approvals under subsection (1), including any conditions imposed on those approvals, on its website.

(6)The Authority, by notice published in the Government Gazette, may revoke an approval under subsection (1).

(7)The Authority must review the suitability of an approval under subsection (1) within 5 years after—

(a)its approval; and

(b)the first review; and

(c)every subsequent review.

171AABApproved person

(1)The Authority, by notice published in the Government Gazette, may approve a person to advise the Authority on the following—

(a)a competence standard that must be approved by the Authority under section 171AA(1)(a);

(b)a prescribed qualification that must be approved by the Authority under section 171AA(1)(b);

(c)a qualification that may be approved by the Authority under section 171AA(1)(c);

(d)experience referred to in section 171(2AA);

(e)whether, having regard to section 171(1)(aa), an applicant for registration in a category or class of building surveyor or building inspector meets the prescribed competence criteria for registration in that category or class of building surveyor or building inspector.

(2)An approval of a person under subsection (1) takes effect—

(a)on the day on which the notice of the approval is published in the Government Gazette; or

(b)on a later day specified in the notice.

(3)The Authority—

(a)may impose a condition on the approval of a person; and

(b)is not bound by the advice of the person.

(4)A person approved under subsection (1), when performing a function under that subsection, must have regard to the guidelines issued under section 171AAC.

(5)The Authority, by notice published in the Government Gazette, may revoke an approval under subsection (1).

171AACMinisterial guidelines

(1)The Minister may from time to time issue guidelines relating to—

(a)approvals under sections 171AA and 171AAB and revocations of those approvals; and

(b)how the functions of persons approved under section 171AAB are to be carried out.

(2)The guidelines must be published in the Government Gazette.

(3)The Authority, in approving matters under section 171AA or persons under section 171AAB or revoking those approvals, must have regard to the guidelines issued under subsection (1)(a).".

58Personal probity requirements

In section 171D(1) of the Building Act 1993, after "171(1)(a)" insert "or (aa)".

59Financial probity requirements

In section 171E(1) of the Building Act 1993, after "171(1)(a)" insert "or (aa)".

60Financial probity requirements

For section 171E(1)(f)(v) of the Building Act 1993 substitute—

"(v)any adjudicated amount that has not under section 28M of the Building and Construction Industry Security of Payment Act 2002 been paid or released on or before the relevant date;".

61Grounds for disciplinary action

For section 179(1)(n) of the Building Act 1993 substitute—

"(n)the practitioner has not under section 28M of the Building and Construction Industry Security of Payment Act 2002 paid or released an adjudicated amount on or before the relevant date; ".

62Functions of the Authority

After section 197(ab) of the Building Act 1993 insert—

"(abb)to approve various matters and persons concerning the registration of building surveyors and building inspectors;".

63General regulation-making powers

For section 261(1)(f) of the Building Act 1993 substitute—

"(f)the qualifications for registration in a category or class of building practitioner or for a licence in a class of building employee;".

64New sections 289 and 289A inserted

At the end of Part 14 of the Building Act 1993 insert—

"289   Transitional and saving provisions relating to the Building Legislation Amendment (Fairer Payments on Jobsites and Other Matters) Act 2025

(1)The amendments made to Part 11 by Division 1 of Part 3 (except sections 60 and 61) of the amending Act do not apply to a person who before the commencement day—

(a)had applied to the Authority for registration in a category or class of building surveyor or building inspector and that application was not finally determined; or

(b)had enrolled in the prescribed qualification and commenced attaining the prescribed experience required for registration in a category or class of building surveyor or building inspector under section 171(1)(a)(i) as in force immediately before the commencement day.

(2)Section 17A(2), as substituted by section 65 of the amending Act, does not apply in respect of an application under section 18AA(1) that is made before the day on which the class of building is prescribed.

(3)In this section—

amending Act means the Building Legislation Amendment (Fairer Payments on Jobsites and Other Matters) Act 2025;

commencement day means the day on which Division 1 of Part 3 (except sections 60 and 61) of the amending Act comes into operation.

289ATransitional regulations

(1)The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of the Building Legislation Amendment (Fairer Payments on Jobsites and Other Matters) Act 2025 (including the repeals and amendments made by that Act).

(2)Regulations made under this section may—

(a)have a retrospective effect to a day on or from the day on which the Building Legislation Amendment (Fairer Payments on Jobsites and Other Matters) Act 2025 receives the Royal Assent; and

(b)be of limited or general application; and

(c)leave any matter or thing to be decided by a specified person or class of person; and

(d)provide for the exemption of persons or classes of person from any of the regulations made under this section.

(3)Regulations made under this section have effect despite anything to the contrary in any Act (other than this Act or the Charter of Human Rights and Responsibilities Act 2006) or in any subordinate instrument.

(4)This section is repealed on the second anniversary of the day on which it comes into operation.".

Division 2—Information statements

65Section 17A amended

For section 17A(2) and the note at the foot of that subsection of the Building Act 1993 substitute—

"(2)A relevant building surveyor, not later than 10 business days after applying under section 18AA(1) for the issue of a building permit number for the building permit, must give the owner of the land or building to which the application for the building permit relates a statement—

(a)in the prescribed form; and

(b)in the prescribed manner; and

(c)containing the prescribed information.

Penalty:60 penalty units.

Note

See section 289(2).

(2A)A relevant building surveyor does not commit an offence against subsection (2) if the relevant building surveyor, before applying under section 18AA(1), has given the same owner a statement containing the same prescribed information.".

Division 3—Codes of conduct for plumbers

66Definitions

In section 3(1) of the Building Act 1993, for the definition of code of conduct substitute—

"code of conduct—

(a)in Part 11, does not include a code of conduct for licensed or registered plumbers approved by the Authority under Division 3A of Part 12A; and

(b)in Part 12A, does not include a code of conduct for building practitioners approved by the Authority under Division 2 of Part 11;".

67New Division 3A of Part 12A inserted

After Division 3 of Part 12A of the Building Act 1993 insert—

"Division 3A—Codes of conduct for plumbers

221ZFDAuthority may approve code of conduct for plumbers

(1)The Authority may approve a code of conduct for licensed or registered plumbers in accordance with this Division.

(2)A code of conduct may make different provision for—

(a)licensed or registered plumbers; and

(b)different classes or types of plumbing work or specialised plumbing work.

221ZFECode of conduct prepared by Authority or industry

(1)A code of conduct may be—

(a)a code of conduct prepared by the Authority; or

(b)a code of conduct prepared and submitted to the Authority by an organisation representing plumbers.

(2)In preparing a code of conduct under subsection (1)(a), the Authority—

(a)must consult with any prescribed organisation representing plumbers; and

(b)may consult with any other organisation.

(3)The Authority may make changes to a code of conduct submitted to the Authority under subsection (1)(b).

(4)Before making changes to a code of conduct under subsection (3), the Authority—

(a)must consult with the organisation that submitted the code of conduct; and

(b)may consult with any other organisation.

221ZFFCode of conduct must be published

(1)A code of conduct must be published in the Government Gazette.

(2)A code of conduct comes into operation on the later of—

(a)the day on which the code of conduct is published in the Government Gazette; or

(b)a later day specified in the code of conduct.

221ZFGLicensed and registered plumbers must comply with approved code of conduct

A licensed or registered plumber must comply with any approved code of conduct that is applicable to the licensed or registered plumber's licence or registration.".

Division 4—Amendment of Building Act 1993 by Building Legislation Amendment (Buyer Protections) Act 2025

68Statute law revision

In section 95(1) of the Building Legislation Amendment (Buyer Protections) Act 2025—

(a)for "41(a)" substitute "41(b)";

(b)for '"by or on behalf of"' substitute '"if the land"'.

PART 4—AMENDMENT OF ENVIRONMENT EFFECTS ACT 1978

69Environment Effects Statement

After section 4(3) of the Environment Effects Act 1978 insert—

"(4)The proponent must pay the prescribed fee (if any) to the Minister before the Minister assesses the environmental effects of the works referred to in subsection (1).".

70The Minister may call for supplementary statement

After section 5(4) of the Environment Effects Act 1978 insert—

"(5)The proponent must pay the prescribed fee (if any) to the Minister before the Minister completes the assessment referred to in subsection (1).".

71Advice of Minister

(1)In section 8B(7) of the Environment Effects Act 1978, for "deemed to be works" substitute "taken to be public works".

(2)After section 8B(7) of the Environment Effects Act 1978 insert—

"(8)If the Minister has given a notice under subsection (4)(a)(ii) to the proponent of the works, the proponent must pay the prescribed fee (if any) to the Minister before the Minister determines under section 8E whether the conditions specified by the Minister in the notice are met.".

72Decisions not to be made and works not to proceed until assessment considered

After section 8C(2) of the Environment Effects Act 1978 insert—

"(3)The proponent must pay the prescribed fee (if any) to the Minister before the Minister assesses the environmental effects of the works referred to in subsection (1).".

73Secretary to give advice and assistance

(1)In section 8G of the Environment Effects Act 1978, for "he or she" substitute "the Secretary".

(2)At the end of section 8G of the Environment Effects Act 1978 insert—

"(2)The proponent must pay the prescribed fee (if any) to the Secretary before the Secretary provides any advice and assistance under subsection (1).".

74New section 10A inserted

After section 10 of the Environment Effects Act 1978 insert—

"10A   Regulations

(1)The Governor in Council may make regulations for or with respect to fees payable under this Act or the regulations.

(2)Without limiting subsection (1), regulations for or with respect to fees may provide for—

(a)fees that differ according to circumstances including the following—

(i)the proponent, person or class of proponent or person who must pay the fee;

(ii)the class of works, statement or supplementary statement for which the fee is imposed;

(iii)the nature or complexity of the assessment or advice and assistance as determined by the Minister or Secretary (as the case may be) for which the fee is imposed; and

(b)more than one fee to be imposed, or one fee to be imposed in stages, for—

(i)an assessment under section 4(1), 5 or 8C; or

(ii)a determination under section 8E as to whether conditions specified in a notice under section 8B(4)(a)(ii) are met; or

(iii)any advice or assistance given under section 8G(1); and

(c)the reduction, waiver or refund in whole or in part, of any fee, in specified circumstances including the following—

(i)the class of proponent or person who must pay the fee;

(ii)the class of works, statement or supplementary statement for which the fee is imposed;

(iii)an administrative error made by the person who imposed the fee; and

(d)the reduction, waiver or refund in whole or in part, of any fee, in a circumstance referred to in paragraph (c) at the discretion of the Minister or Secretary.

(3)If the regulations provide for a refund of a fee, the Consolidated Fund is appropriated to the necessary extent to enable any refund to be paid.".

PART 5—AMENDMENT OF HERITAGE ACT 2017

75Amendment of planning schemes

In section 56(4) of the Heritage Act 2017, after "12(2)," insert "12(2A),".

76Amendment of planning schemes

In section 180(4) of the Heritage Act 2017, after "12(2)," insert "12(2A),".

PART 6—AMENDMENT OF PLANNING AND ENVIRONMENT ACT 1987

77What can an enforcement order provide for?

(1)In section 119 of the Planning and Environment Act 1987—

(a)in paragraph (b)(iv)(B), for "section 173." substitute "section 173; and";

(b)after paragraph (b) insert—

"(c)may direct any person against whom it is made to do anything referred to in subsection (3) in the circumstances specified in subsection (2).".

(2)At the end of section 119 of the Planning and Environment Act 1987 insert—

"(2)If native vegetation has been removed, destroyed or lopped in contravention of a planning scheme, a condition of a permit or an agreement under section 173, an enforcement order may direct any person against whom it is made to do anything specified in subsection (3) in relation to—

(a)the land from which the native vegetation was removed or on which it was destroyed or lopped; or

(b)any other land.

(3)For the purposes of subsection (2), the Tribunal may direct the person—

(a)to plant, protect or regenerate native vegetation, including by specifying any of the following—

(i)the type and amount of native vegetation to be planted, protected or regenerated;

(ii)the manner in which native vegetation is to be planted, protected or regenerated;

(iii)the location on the land on which native vegetation is to be planted, protected or regenerated;

(iv)that any planting, protection or regeneration of native vegetation occurs to the satisfaction of the responsible authority, the Minister, public authority, municipal council, referral authority or other person or body specified in the order; or

(b)to take any other action—

for the purposes of achieving or advancing a provision of a planning scheme that relates to native vegetation.

(4)In this section—

native vegetation means vegetation that is prescribed as native vegetation.".

78Statute law revision and other amendment

(1)In section 158F(5) of the Planning and Environment Act 1987 omit '".'.

(2)In section 161(4) of the Planning and Environment Act 1987, for "hear evidence and submissions" substitute "consider evidence and further submissions".

PART 7—REPEAL OF THIS ACT

79Repeal of this Act

This Act is repealed on 1 September 2027.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

═════════════

ENDNOTES

1   General information

See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 11 September 2025

Legislative Council: 16 October 2025

The long title for the Bill for this Act was "A Bill for an Act to amend the Building and Construction Industry Security of Payment Act 2002, the Building Act 1993, the Environment Effects Act 1978, the Heritage Act 2017 and the Planning and Environment Act 1987 and for other purposes."

Constitution Act 1975:

Section 85(5) statement:

Legislative Assembly: 11 September 2025

Legislative Council: 16 October 2025

Absolute majorities:

Legislative Assembly: 16 October 2025

Legislative Council: 30 October 2025