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New South Wales
Home Building Amendment Bill 2004
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Home Building Act 1989 No 147 2
4 Amendment of Home Building Regulation 2004 2
5 Amendment of other Acts and regulations 2
Schedule 1 Amendments relating to insurance 3
Schedule 2 Amendments relating to authorities 8
Schedule 3 Amendments relating to disciplinary action 17
Schedule 4 Amendments relating to offences and penalties 21
Schedule 5 Amendments relating to Home Warranty Insurance
Scheme Board and Home Building Advisory Council 26
Schedule 6 Miscellaneous amendments 34
Schedule 7 Amendments inserting savings and transitional provisions 37
Schedule 8 Amendment of Home Building Regulation 2004 39
Schedule 9 Amendment of other Acts and regulations 43
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2004
New South Wales
Home Building Amendment Bill 2004
Act No , 2004
An Act to amend the Home Building Act 1989 to make further provision with respect
to home warranty insurance and contractor licences and other authorities; and for
other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Home Building Amendment Bill 2004
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Home Building Amendment Act 2004.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Home Building Act 1989 No 147
The Home Building Act 1989 is amended as set out in Schedules 17.
4 Amendment of Home Building Regulation 2004
The Home Building Regulation 2004 is amended as set out in
Schedule 8.
5 Amendment of other Acts and regulations
The Acts and regulations specified in Schedule 9 are amended as set out
in that Schedule.
Page 2
Home Building Amendment Bill 2004
Amendments relating to insurance Schedule 1
Schedule 1 Amendments relating to insurance
(Section 3)
[1] Part 6, heading
Omit the heading. Insert instead:
Part 6 Home warranty insurance
[2] Section 90 Definitions
Insert in alphabetical order in section 90 (1):
home warranty insurance means insurance under a contract of
insurance required to be entered into by or under this Part.
insurance industry deed means an agreement referred to in
section 103A (7).
[3] Section 103A Approval of insurance and insurers
Insert ", after consultation with the Scheme Board," after "Minister may" in
section 103A (1).
[4] Section 103A (2)
Insert "after consultation with the Scheme Board," after "may,".
[5] Section 103A (7)
Insert after section 103A (6):
(7) The Minister may, on behalf of the State, enter into an agreement
under seal from time to time with insurers approved, or seeking
approval, for the purposes of this Part with respect to the
provision by the insurers of home warranty insurance (an
insurance industry deed) and may agree to the revocation or
variation of such an agreement.
[6] Section 103AC Information regarding insurers
Omit "(if those claimants or persons consent)" from section 103AC (2) (c).
Page 3
Home Building Amendment Bill 2004
Schedule 1 Amendments relating to insurance
[7] Section 103AD
Insert after section 103AC:
103AD Exchange of information between insurers
(1) An insurer to which a person has applied for home warranty
insurance or that has provided home warranty insurance to a
person may, by notice in writing, request any other insurer that
the insurer has reasonable grounds to believe is an insurer to
which a person has made an application for home warranty
insurance or that has provided home warranty insurance to the
person to disclose to the insurer any relevant insurance
information relating to the person.
Note. Home warranty insurance is defined in section 90 as insurance
under a contract of insurance required to be entered into by or under
Part 6.
(2) It is a condition of an approval of an insurer under section 103A
that the insurer disclose any relevant insurance information
requested under subsection (1) as soon as is reasonably
practicable after the request is made.
(3) An insurer requested to provide relevant insurance information
under subsection (1) is required or authorised to disclose the
information despite section 121 or any other law of this or any
other jurisdiction with respect to the privacy of such information
that would otherwise prohibit that disclosure.
(4) An insurer is not liable for any damage caused by the provision
of information under this section to another insurer.
(5) In this section:
relevant insurance information, in relation to a person who has
applied to an insurer for, or to whom an insurer has provided,
home warranty insurance means:
(a) information concerning the business, commercial,
professional or financial affairs of the person that is
relevant to the provision of home warranty insurance, or
(b) information obtained in the course of an investigation of an
application for such insurance, or
(c) information concerning the home warranty insurance (if
any) provided to the person.
Page 4
Home Building Amendment Bill 2004
Amendments relating to insurance Schedule 1
[8] Section 103EA
Insert after section 103E:
103EA False or misleading applications for home warranty insurance
(1) A person must not, in connection with an application to an insurer
for home warranty insurance, make a statement (whether orally,
in a document or in any other way) knowing that, or being
reckless as to whether, the statement:
(a) is false or misleading, or
(b) omits any matter or thing without which the statement is
misleading.
Maximum penalty: 200 penalty units.
(2) Subsection (1) does not apply as a result of subsection (1) (a) if
the statement is not false or misleading in a material particular.
(3) Subsection (1) does not apply as a result of subsection (1) (b) if
the statement did not omit any matter or thing without which the
statement is misleading in a material particular.
(4) The burden of establishing a matter referred to in subsection (2)
or (3) lies on the accused person.
[9] Section 121 Disclosure of information
Omit "obtained." from section 121 (2) (c). Insert instead:
obtained,
but does not include protected information within the meaning of
section 121A.
[10] Section 121A
Insert after section 121:
121A Secrecy of information obtained from or relating to insurers or
proposed insurers
(1) A person who acquires protected information in the exercise of
functions under this Act must not, directly or indirectly, make a
record of the information or divulge the information to another
person if the person is aware that it is protected information,
except in the exercise of functions under this Act.
Maximum penalty: 50 penalty units.
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Home Building Amendment Bill 2004
Schedule 1 Amendments relating to insurance
(2) Despite subsection (1), protected information may be divulged:
(a) to a particular person or persons, if the Minister certifies
that it is necessary in the public interest that the
information be divulged to the person or persons, or
(b) to a person, or authority, prescribed by the regulations, or
(c) to a person who is expressly or impliedly authorised to
obtain it by the insurer from which the information was
acquired.
(3) A person cannot be required:
(a) to produce in any court any document or other thing that
contains protected information and that has come into the
person's possession, custody or control by reason of, or in
the course of, the exercise of the person's functions under
this Act, or
(b) to divulge to any court any protected information that has
come to the person's notice in the exercise of the person's
functions under this Act.
(4) Despite subsection (3), a person may be required to produce such
a document or other thing in a court or to divulge protected
information to a court if:
(a) the Minister certifies that it is necessary in the public
interest to do so, or
(b) the insurer to whom the information relates (or to whom
the information contained in the document or thing relates)
has expressly authorised it to be divulged to or produced in
the court.
(5) An authority or person to whom protected information is
divulged under subsection (2), and a person or employee under
the control of that authority or person, are, in respect of that
information, subject to the same rights, privileges and duties
under this section as they would be if that authority, person or
employee were a person exercising functions under this Act and
had acquired the information in the exercise of those functions.
(6) This section does not apply to the divulging of information to, or
the production of any document or other thing to:
(a) any law enforcement agency, or
(b) any person or body prescribed for the purposes of this
subsection.
Page 6
Home Building Amendment Bill 2004
Amendments relating to insurance Schedule 1
(7) In this section:
court includes any tribunal, authority or person having power to
require the production of documents or the answering of
questions.
functions under this Act includes functions under the regulations
or other instruments under this Act.
produce includes permit access to.
protected information means information about the business or
commercial operations of an insurer obtained from an insurer
under (or in connection with the administration or execution of)
Part 6, not being information that is publicly available.
Page 7
Home Building Amendment Bill 2004
Schedule 2 Amendments relating to authorities
Schedule 2 Amendments relating to authorities
(Section 3)
[1] Section 3 Definitions
Insert in alphabetical order in section 3 (1):
authority means the following:
(a) a contractor licence (whether or not an endorsed contractor
licence),
(b) a supervisor or tradesperson certificate,
(c) an owner-builder permit,
(d) a building consultancy licence.
close associate, of an applicant for, or holder of, a contractor
licence or building consultancy licence or of an applicant for the
renewal or restoration of such a licence is defined in section 3AA.
[2] Section 3 (1), definition of "officer"
Omit the definition. Insert instead:
officer, in relation to a corporation, has the same meaning as it
has in the Corporations Act 2001 of the Commonwealth.
[3] Section 3AA
Insert after section 3:
3AA Meaning of "close associate" of applicant for, or holder of, licence
(1) For the purposes of this Act, a person is a close associate of an
applicant for, or holder of, a contractor licence or building
consultancy licence or of an applicant for the renewal or
restoration of such a licence if the person:
(a) is a partner of the applicant or holder, or
(b) is an employee or agent of the applicant or holder, or
(c) is a corporation, or a member of a corporation, partnership,
syndicate or joint venture, in which the applicant or holder
or a person referred to in paragraph (a), (b) or (d) has a
beneficial interest, or
(d) bears a prescribed relationship to the applicant or holder,
or
(e) is a corporation that is a subsidiary (within the meaning of
the Corporations Act 2001 of the Commonwealth) of the
applicant or holder, or
Page 8
Home Building Amendment Bill 2004
Amendments relating to authorities Schedule 2
(f) holds or is entitled to exercise, in respect of the applicant
or holder or the business of the applicant or holder, any
other relevant financial interest, relevant position or
relevant power.
(2) For the purposes of subsection (1) (d), a person bears a prescribed
relationship to an applicant or holder of a licence if the
relationship is that of:
(a) a spouse, or
(b) a de facto partner who is living or has lived with him or her
as his or her wife or husband on a bona fide domestic basis
although not married to him or her, or
(c) a child, grandchild, sibling, parent or grandparent, whether
derived through paragraph (a) or (b) or otherwise, or
(d) a kind prescribed by the regulations for the purposes of this
section.
(3) For the purposes of subsection (1) (f):
relevant financial interest means:
(a) any share in the capital of the business, or
(b) any entitlement to receive any income derived from the
business, whether the entitlement arises at law or in equity
or otherwise.
relevant position means the position of director, manager, and
other executive positions and secretary, however those positions
are designated.
relevant power means any power, whether exercisable by voting
or otherwise and whether exercisable alone or in association with
others:
(a) to participate in any directorial, managerial or executive
decision, or
(b) to elect or appoint any person to any relevant position.
[4] Section 20 Issue of contractor licences
Insert before section 20 (2):
(1) The Director-General must reject an application for a contractor
licence if:
(a) the Director-General is not satisfied that the applicant is a
fit and proper person to hold a contractor licence, or
(b) the applicant is a mentally incapacitated person, or
Page 9
Home Building Amendment Bill 2004
Schedule 2 Amendments relating to authorities
(c) the applicant is disqualified by this Act or the regulations
from holding a contractor licence.
Note. Under section 6 of the applied Act (within the meaning of section
19) an application for the grant of a contractor licence may be made by
any individual aged 18 years or more, by any partnership or other
association whose members are all individuals aged 18 years or more or
by any corporation.
(1A) Without limiting subsection (1) (a), in determining whether an
applicant is a fit and proper person to hold a licence the
Director-General is to consider whether the applicant is of good
repute, having regard to character, honesty and integrity.
[5] Section 20 (2)
Insert "additional" after "determine".
[6] Section 20 (6)
Insert after section 20 (5):
(6) Without limiting this section, the Director-General may reject an
application for a contractor licence if the Director-General is of
the opinion that it is in the public interest to do so on any of the
following grounds:
(a) an employee or proposed employee of the applicant is
disqualified from holding a contractor licence, has had an
application for an authority rejected on a ground relating to
his or her character, honesty or integrity or has had an
authority cancelled or suspended on any disciplinary
ground,
(b) there are reasonable grounds to believe that the application
has been made with the intention of avoiding disclosure of
any relevant past misconduct of the applicant or a close
associate of the applicant,
(c) the Director-General considers that a close associate of the
applicant who would not be a fit and proper person to hold
a contractor licence exercises a significant influence over
the applicant or the operation and management of the
applicant's business.
[7] Section 22 Cancellation of contractor licences
Insert "or has been voluntarily wound up" after "Commonwealth" wherever
occurring in section 22 (1) (d) and (2) (c).
Page 10
Home Building Amendment Bill 2004
Amendments relating to authorities Schedule 2
[8] Section 22 (1) (h) and (i)
Insert at the end of section 22 (1) (g):
, or
(h) the holder of the contractor licence becomes a mentally
incapacitated person, or
(i) the holder of the contractor licence becomes disqualified
by this Act or the regulations from holding a contractor
licence.
[9] Section 22 (2) (g) and (h)
Insert at the end of section 22 (2) (f):
, or
(g) the holder of the contractor licence becomes a mentally
incapacitated person, or
(h) the holder of the contractor licence becomes disqualified
by this Act or the regulations from holding a contractor
licence.
[10] Section 25 Issue of certificates
Insert before section 25 (2):
(1) The Director-General must reject an application for a supervisor
or tradesperson certificate if:
(a) the Director-General is not satisfied that the applicant is a
fit and proper person to hold such a certificate, or
(b) the applicant is a mentally incapacitated person, or
(c) the applicant is disqualified by this Act or the regulations
from holding such a certificate.
(1A) Without limiting subsection (1) (a), in determining whether an
applicant is a fit and proper person to hold a certificate the
Director-General is to consider whether the applicant is of good
repute, having regard to character, honesty and integrity.
[11] Section 25 (2)
Insert "additional" after "determine".
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Home Building Amendment Bill 2004
Schedule 2 Amendments relating to authorities
[12] Section 32B Issue of building consultancy licences
Insert before section 32B (2):
(1) The Director-General must reject an application for a building
consultancy licence if:
(a) the Director-General is not satisfied that the applicant is a
fit and proper person to hold a building consultancy
licence, or
(b) the applicant is a mentally incapacitated person, or
(c) the applicant is disqualified by this Act or the regulations
from holding a building consultancy licence.
Note. Under section 6 of the applied Act (within the meaning of section
19) an application for the grant of a building consultancy licence may be
made by any individual aged 18 years or more, by any partnership or
other association whose members are all individuals aged 18 years or
more or by any corporation.
(1A) Without limiting subsection (1) (a), in determining whether an
applicant is a fit and proper person to hold a licence the
Director-General is to consider whether the applicant is of good
repute, having regard to character, honesty and integrity.
[13] Section 32B (2)
Insert "additional" after "determine".
[14] Section 32B (5)
Insert after section 32B (4):
(5) Without limiting this section, the Director-General may reject an
application for a building consultancy licence if the
Director-General is of the opinion that it is in the public interest
to do so on any of the following grounds:
(a) an employee or proposed employee of the applicant is
disqualified from holding a building consultancy licence,
has had an application for an authority rejected on a ground
relating to his or her character, honesty or integrity or has
had an authority cancelled or suspended on any
disciplinary ground,
(b) there are reasonable grounds to believe that the application
has been made with the intention of avoiding disclosure of
any relevant past misconduct of the applicant or a close
associate of the applicant,
Page 12
Home Building Amendment Bill 2004
Amendments relating to authorities Schedule 2
(c) the Director-General considers that a close associate of the
applicant who would not be a fit and proper person to hold
a building consultancy licence exercises a significant
influence over the applicant or the operation and
management of the applicant's business.
[15] Section 32D Cancellation of building consultancy licences
Insert "or has been voluntarily wound up" after "Commonwealth" in section
32D (1) (c).
[16] Section 32D (1) (f) and (g)
Insert at the end of section 32D (1) (e):
, or
(f) the holder of the building consultancy licence becomes a
mentally incapacitated person, or
(g) the holder of the building consultancy licence becomes
disqualified by this Act or the regulations from holding a
building consultancy licence.
[17] Section 34
Insert after section 33:
34 Updating of applications
(1) An applicant for an authority, or for the variation, renewal or
restoration of an authority, must give the Director-General
written particulars of any change in the particulars or information
accompanying the application that occurs before the applicant is
given notice of the determination of the application within 7 days
(or such longer period as the Director-General allows in a
particular case) after the change.
Maximum penalty: 50 penalty units.
(2) Particulars of any change given by the applicant are then to be
considered to have formed part of the original application for the
purposes of the application of subsection (1) to any further
change in the particulars or information provided.
(3) This section does not apply to any change in particulars or
information if the Director-General has notified the applicant in
writing that the Director-General does not require particulars of
any change in the particulars or information concerned or does
not require particulars of the type of change concerned.
Page 13
Home Building Amendment Bill 2004
Schedule 2 Amendments relating to authorities
[18] Section 35
Insert before section 36:
35 Director-General may obtain information from third parties
(1) The Director-General may, by notice in writing, require an
applicant for a contractor licence (whether or not an endorsed
contractor licence), an applicant for the renewal or restoration of
such a licence or a close associate of the applicant:
(a) to authorise a person described in the notice:
(i) to provide such information as is specified in the
notice as is relevant to the investigation of the
application, or
(ii) to produce, in accordance with directions in the
notice, such records relevant to the investigation of
the application as are specified in the notice and to
permit examination of the records, the taking of
extracts from them and the making of copies of
them, or
(b) to furnish to the Director-General such authorities and
consents as the Director-General directs for the purpose of
enabling the Director-General to obtain information
(including financial and other confidential information)
from other persons concerning the person or close
associate.
(2) If a requirement made under this section is not complied with, the
Director-General may refuse to consider the application
concerned while the non-compliance continues.
(3) A person who complies with a requirement of a notice under this
section does not on that account incur a liability to another
person.
[19] Section 40 Renewal or restoration of authorities
Insert before section 40 (2):
(1) The Director-General must reject an application for the renewal
or restoration of an authority if:
(a) the Director-General is not satisfied that the applicant is a
fit and proper person to hold the authority, or
(b) the applicant is a mentally incapacitated person, or
(c) the applicant is disqualified by this Act or the regulations
from holding the authority or would be so disqualified
when the renewal would take effect, or
Page 14
Home Building Amendment Bill 2004
Amendments relating to authorities Schedule 2
(d) the Director-General considers that a close associate of the
applicant who would not be a fit and proper person to hold
an authority exercises a significant influence over the
applicant or the operation and management of the
applicant's business.
(1A) Without limiting subsection (1) (a), in determining whether an
applicant is a fit and proper person to hold an authority the
Director-General is to consider whether the applicant is of good
repute, having regard to character, honesty and integrity.
[20] Section 40 (2) (c)
Omit the paragraph.
[21] Section 40 (2B)
Omit section 40 (2B) and (2C). Insert instead:
(2B) The Director-General may reject an application for renewal or
restoration of a contractor licence or building consultancy licence
if an employee or proposed employee of the applicant is
disqualified from holding such a licence, has had an application
for such a licence rejected on a ground relating to his or her
character, honesty or integrity or has had such a licence cancelled
or suspended on a disciplinary ground.
[22] Section 56 Grounds for taking disciplinary action against holder of a
contractor licence
Omit "fit" from section 56 (b). Insert instead "a fit and proper person".
[23] Section 56A Grounds for taking disciplinary action against holder of a
building consultancy licence
Omit "fit" from section 56A (b). Insert instead "a fit and proper person".
[24] Section 57 Grounds for taking disciplinary action against holder of a
supervisor or tradesperson certificate
Omit "fit" from section 57 (b). Insert instead "a fit and proper person".
[25] Section 83B Reviews by Tribunal
Omit "issue or alteration" from section 83B (1).
Insert instead "issue, alteration, renewal or restoration".
[26] Section 83B (3) (a)
Omit "a contractor licence". Insert instead "an authority".
Page 15
Home Building Amendment Bill 2004
Schedule 2 Amendments relating to authorities
[27] Section 127 Power to obtain information
Insert ", or for the renewal or restoration of," after "application for" in
paragraph (d) of the definition of relevant information in section 127 (1).
[28] Section 127 (1), definition of "relevant information"
Insert at the end of paragraph (d):
, or
(e) the financial solvency of an applicant for, or holder of, a
contractor licence, building consultancy licence or of a
supervisor or tradesperson certificate or a close associate
of such an applicant or holder.
[29] Section 127 (8)
Insert after section 127 (7):
(8) For the purposes of section 25 of the Privacy and Personal
Information Protection Act 1998, an authorised person is not
required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 of
that Act in respect of the provision of relevant information under
this section.
Page 16
Home Building Amendment Bill 2004
Amendments relating to disciplinary action Schedule 3
Schedule 3 Amendments relating to disciplinary
action
(Section 3)
[1] Section 22B Suspension of contractor licences--appointment of
controller or administrator
Omit "Section 83" and "District Court" from the note to the section.
Insert instead "Section 61A" and "Director-General", respectively.
[2] Section 51 Improper conduct: generally
Insert "or section 307A or 307B of the Crimes Act 1900" after "regulations"
in section 51 (1) (a).
[3] Section 51 (1) (e)
Insert at the end of section 51 (1) (d):
, or
(e) becomes a person who is disqualified by this Act or the
regulations from holding the licence or certificate.
[4] Section 51 (2) (d)
Insert after section 51 (2) (c):
(d) employs a person or engages a person under a contract for
services knowing the person is disqualified from holding a
contractor licence, has had an application for an authority
rejected on a ground relating to the person's character,
honesty or integrity or has had an authority cancelled or
suspended on a disciplinary ground, or
[5] Section 51 (2A) (f)
Insert at the end of section 51 (2A) (e):
, or
(f) employs a person to do building consultancy work for the
holder knowing the person is disqualified from holding a
building consultancy licence, has had an application for an
authority rejected on a ground relating to the person's
character, honesty or integrity or has had an authority
cancelled or suspended on a disciplinary ground.
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Home Building Amendment Bill 2004
Schedule 3 Amendments relating to disciplinary action
[6] Section 51 (4)
Insert after section 51 (3):
(4) It is a sufficient defence to a complaint that the holder of a
contractor licence or building consultancy licence has been guilty
of improper conduct as referred to in subsection (2) (d) or (2A)
(f) if, before employing or engaging the person concerned, the
holder obtained the approval of the Director-General to the
employment or engagement of the person.
[7] Section 54 Improper conduct: members of partnerships or officers of
corporations
Insert "or a building consultancy licence" after "contractor licence" in section
54 (1).
[8] Section 56 Grounds for taking disciplinary action against holder of a
contractor licence
Insert after section 56 (g):
(h) that the holder does not meet the standards of financial
solvency determined by the Director-General to be
appropriate to the class of licence held,
(i) that, in the opinion of the Director-General, there is a risk
to the public that the holder will be unable (whether or not
for a reason relating to the financial solvency of the holder)
to carry out work that the holder has contracted to do
(whether before or after the commencement of this
paragraph),
(j) that the licence was improperly obtained,
(k) that the Director-General has become aware of
information about the licensee that, if known at the time
the application for the licence was determined, would have
been grounds for rejecting the application,
(l) that the holder has knowingly done any residential
building work or specialist work before the relevant
principal certifying authority has carried out any critical
stage inspection required to be carried out under section
109E (3) (d) of the Environmental Planning and
Assessment Act 1979 in relation to the work or has failed
to give any notification required under that Act in relation
to such an inspection.
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Home Building Amendment Bill 2004
Amendments relating to disciplinary action Schedule 3
[9] Section 56A Grounds for taking disciplinary action against holder of a
building consultancy licence
Insert after section 56A (e):
(f) that the licence was improperly obtained,
(g) that the Director-General has become aware of
information about the licensee that, if known at the time
the application for the licence was determined, would have
been grounds for rejecting the application,
(h) that an employee of the holder is disqualified from holding
a building consultancy licence, has had an application for
such a licence rejected on a ground relating to his or her
character, honesty or integrity or has had such a licence
cancelled or suspended on a disciplinary ground.
[10] Section 57 Grounds for taking disciplinary action against holder of a
supervisor or tradesperson certificate
Insert after section 57 (e):
(f) that the certificate was improperly obtained,
(g) that the Director-General has become aware of
information about the holder that, if known at the time the
application for the certificate was determined, would have
been grounds for rejecting the application.
[11] Section 61A
Insert after section 61:
61A Power to suspend authority when show cause notice served
(1) The Director-General may by notice in writing to the holder of an
authority suspend the authority pending a determination by the
Director-General of whether to take disciplinary action under this
Act against the holder if:
(a) a show cause notice has been served in the holder under
section 61, and
(b) the Director-General is of the opinion that there are
reasonable grounds to believe that:
(i) the holder has engaged in conduct that constitutes
grounds for suspension of the authority, and
(ii) it is likely that the holder will continue to engage in
that conduct, and
Page 19
Home Building Amendment Bill 2004
Schedule 3 Amendments relating to disciplinary action
(iii) there is a danger that a person or persons may suffer
significant harm, or significant loss or damage, as a
result of that conduct unless action is taken urgently.
(2) The Director-General may only suspend an authority under this
section if satisfied that the grounds for disciplinary action
specified in the show cause notice would, if established, justify
the suspension or cancellation of the authority.
(3) Such a suspension may not be imposed for a period of more than
60 days after the show cause notice is served. The period of the
suspension is to be specified in the notice imposing the
suspension.
(4) The Director-General is not required to afford a person an
opportunity to be heard before taking action against the person
under this section.
(5) The Director-General may revoke a suspension under this section
at any time by notice in writing to the suspended person.
(6) This section does not limit or otherwise affect any power to
suspend an authority under section 64A of the Fair Trading Act
1987.
[12] Section 62 Disciplinary action that may be taken by Director-General
Omit "$22,000" from section 62 (c). Insert instead "$50,000".
[13] Part 4, Division 5 Suspension of contractor licences by District Court
Omit the Division.
[14] Section 83B Reviews by Tribunal
Omit "section 22A or 22B" from section 83B (2A).
Insert instead "section 22A, 22B or 61A".
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Home Building Amendment Bill 2004
Amendments relating to offences and penalties Schedule 4
Schedule 4 Amendments relating to offences and
penalties
(Section 3)
[1] Sections 4, 5, 8, 1216, 16A, 16B, 16E, 17, 18H, 18I, 18T, 18U, 18V, 65, 92,
93, 95, 96 (1) and (2), 96A (1) and 127
Omit the penalty provisions wherever occurring. Insert instead:
Maximum penalty: 1,000 penalty units in the case of a
corporation and 200 penalty units in any other case.
[2] Section 4 Unlicensed contracting
Insert at the end of the section:
(2) The holder of a contractor licence who has contracted to do any
residential building work must not contract with another person
for the other person to do the work (or any part of the work) for
the holder unless the other person is the holder of a contractor
licence to do work of that kind.
Maximum penalty: 1,000 penalty units in the case of a
corporation and 200 penalty units in any other case.
(3) The holder of a contractor licence must not contract with another
person for the other person to do any work (or part of any work)
for the holder for which insurance is required under this Act
unless the other person is the holder of a contractor licence to do
work of that kind.
Maximum penalty: 1,000 penalty units in the case of a
corporation and 200 penalty units in any other case.
(4) A developer must not contract with another person for the other
person to do any residential building work on behalf of the
developer in the circumstances set out in section 3A (2) unless the
other person is the holder of a contractor licence authorising the
other person to do work of that kind.
Maximum penalty: 1,000 penalty units in the case of a
corporation and 200 penalty units in any other case.
(5) A person is not guilty of an offence against subsection (2), (3) or
(4) if the person establishes that the person did all that could
reasonably be required to prevent the contravention of the
subsection.
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Home Building Amendment Bill 2004
Schedule 4 Amendments relating to offences and penalties
[3] Sections 7AA, 16DAA, 18L, 22A, 22B, 36, 44, 47, 66, 96 (2B), 96A (1A) and
128
Omit the penalty provisions wherever occurring. Insert instead:
Maximum penalty: 40 penalty units in the case of a corporation
and 20 penalty units in any other case.
[4] Sections 7A, 7B, 9, 16DA, 16DB, 16F, 18N, 18O, 92A and 93A
Omit the penalty provisions wherever occurring. Insert instead:
Maximum penalty: 80 penalty units in the case of a corporation
and 40 penalty units in any other case.
[5] Section 16A Unlicensed contracting or supplying
Insert at the end of the section after the penalty provision:
(2) The holder of a contractor licence who has contracted to supply a
kit home must not contract with another person for that person to
supply the kit home for the holder unless the person is the holder
of a contractor licence to supply a kit home of that kind.
Maximum penalty: 1,000 penalty units in the case of a
corporation and 200 penalty units in any other case.
(3) The holder of a contractor licence is not guilty of an offence
under subsection (2) if the holder establishes that the holder did
all that could reasonably be required to prevent the contravention
of the subsection.
[6] Section 18H Unlicensed contracting
Insert at the end of the section after the penalty provision:
(2) The holder of a building consultancy licence who has contracted
to do any building consultancy work must not contract with
another person for the other person to do the work (or any part of
the work) for the holder unless the other person is the holder of a
building consultancy licence to do work of that kind.
Maximum penalty: 1,000 penalty units in the case of a
corporation and 200 penalty units in any other case.
(3) The holder of a building consultancy licence is not guilty of an
offence under subsection (2) if the holder establishes that the
holder did all that could reasonably be required to prevent the
contravention of the subsection.
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Home Building Amendment Bill 2004
Amendments relating to offences and penalties Schedule 4
[7] Section 32AA
Insert after section 32:
32AA Unlicensed contracting
(1) The holder of an owner-builder permit must not contract with
another person for that person to do any residential building work
(or any part of the work) for the holder unless the person is the
holder of a contractor licence to do work of that kind.
Maximum penalty: 200 penalty units.
(2) The holder of an owner-builder permit is not guilty of an offence
under this section if the holder establishes that the holder did all
that could reasonably be required to prevent the contravention of
this section.
[8] Section 46A
Insert after section 46:
46A Lending of authority prohibited
(1) The holder of an authority must not let out, hire or lend the
authority to any other person or permit any other person to use the
authority.
Maximum penalty: 1,000 penalty units in the case of a
corporation and 200 penalty units in any other case.
(2) A court that convicts a person for an offence under this section is
to order the cancellation of the authority concerned. The
authority is cancelled on the making of the order.
[9] Section 127A
Insert after section 127:
127A Power to request name and address of persons undertaking
residential building work or specialist work
(1) An authorised officer may request the person who has control
over the carrying out of the doing of any residential building
work, or specialist work, at a building site to state the name and
residential address of each person who has contracted to do the
work or any part of such work.
(2) An authorised officer may request the holder of an owner-builder
permit to state the name and residential address of each person
who has contracted to do any residential building work for the
holder.
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Home Building Amendment Bill 2004
Schedule 4 Amendments relating to offences and penalties
(3) For the purposes of subsection (1), the holder of an endorsed
contractor licence or a supervisor certificate is to be presumed, in
the absence of evidence to the contrary, to have control over the
doing of all work for which the holder is a nominated supervisor.
(4) A person is guilty of an offence if the person:
(a) fails or refuses, without reasonable excuse, to comply with
a request under this section at the time that the request is
made, or
(b) states a name or address the person knows to be false.
Maximum penalty: 200 penalty units.
(5) A person is not guilty of an offence under this section unless it is
established that the authorised officer:
(a) provided evidence to the person that he or she was an
authorised officer, and
(b) warned the person that a failure to comply with the request
may be an offence.
(6) In this section:
authorised officer means an officer of the Department of
Commerce authorised by the Director-General for the purposes
of this section and holding a certificate issued by the
Director-General as to that authority.
[10] Section 139 Proceedings for offences
Omit section 139 (1). Insert instead:
(1) Proceedings for an offence against this Act are to be dealt with:
(a) summarily before a Local Court, or
(b) summarily before the Supreme Court in its summary
jurisdiction.
(1A) If proceedings for an offence against this Act are brought in a
Local Court, the maximum monetary penalty that the Local Court
may impose for the offence is 200 penalty units, despite any
higher maximum monetary penalty provided in respect of the
offence.
(1B) Proceedings for an offence against the regulations are to be dealt
with summarily before a Local Court.
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Home Building Amendment Bill 2004
Amendments relating to offences and penalties Schedule 4
[11] Section 140 Regulations
Omit "100 penalty units" from section 140 (3).
Insert instead "200 penalty units in the case of a corporation and 100 penalty
units in any other case".
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Home Building Amendment Bill 2004
Schedule 5 Amendments relating to Home Warranty Insurance Scheme Board and
Home Building Advisory Council
Schedule 5 Amendments relating to Home Warranty
Insurance Scheme Board and Home
Building Advisory Council
(Section 3)
[1] Section 3 Definitions
Insert in alphabetical order in section 3 (1):
Advisory Council means the Home Building Advisory Council
constituted under Part 7B.
Scheme Board means the Home Warranty Insurance Scheme
Board constituted under Part 6.
[2] Part 6
Insert after the heading to Part 6:
Division 1 Home Warranty Insurance Scheme Board
89E Constitution of Home Warranty Insurance Scheme Board
There is constituted by this Act a board called the Home
Warranty Insurance Scheme Board.
89F Membership of Scheme Board
(1) The Scheme Board is to consist of 6 members.
(2) The members of the Scheme Board are:
(a) the Director-General of the Department of Commerce or a
nominee of the Director-General, and
(b) 5 persons appointed by the Minister.
(3) The members appointed by the Minister must have knowledge of
or experience in insurance products or commerce.
(4) Schedule 1 has effect with respect to the members and procedure
of the Scheme Board.
89G Functions
The functions of the Scheme Board are as follows:
(a) to advise the Minister with respect to the approval of kinds
of insurance, and insurers, under this Part,
(b) to advise the Minister on the conditions of approval of
insurers under this Part,
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Home Building Amendment Bill 2004
Amendments relating to Home Warranty Insurance Scheme Board and Schedule 5
Home Building Advisory Council
(c) to advise the Minister on variations to approvals of
insurers under this Part,
(d) to monitor the operation of the scheme established by this
Part with respect to home warranty insurance and to
provide advice and to make recommendations with respect
to the scheme,
(e) to provide advice to the Minister with respect to any other
matter referred to it by the Minister.
Division 2 Insurance
[3] Part 7B
Insert before the heading to Part 8:
Part 7B Home Building Advisory Council
115B Constitution of Advisory Council
There is constituted by this Act a council called the Home
Building Advisory Council.
115C Functions
The functions of the Advisory Council are as follows:
(a) to advise the Minister on such consumer-related or trader
-related issues relating to the home building industry as it
thinks fit or as are referred to it by the Minister or the
Scheme Board,
(b) to provide advice to the Minister with respect to any other
matter referred to it by the Minister.
115D Membership of Advisory Council
(1) The Advisory Council is to consist of at least 14 members, being:
(a) the Chairperson of the Scheme Board, and
(b) the Deputy Chairperson of the Scheme Board, and
(c) the Director-General of the Department of Commerce or a
nominee of the Director-General, and
(d) 2 representatives of the insurance industry appointed by
the Minister after consultation with the Insurance Council
of Australia, and
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Home Building Amendment Bill 2004
Schedule 5 Amendments relating to Home Warranty Insurance Scheme Board and
Home Building Advisory Council
(e) 2 representatives of the building industry appointed by the
Minister after consultation with the Master Builders
Association and the Housing Industry Association, and
(f) 2 persons appointed by the Minister after consultation with
the Labor Council of New South Wales to represent the
interests of building industry employees, and
(g) 2 persons who are holders of contractor licences and are
appointed by the Minister, and
(h) 2 persons appointed by the Minister to represent the
interests of consumers, and
(i) one legal practitioner appointed by the Minister after
consultation with the Councils of the Law Society and the
Bar Association, and
(j) such other persons (if any) as the Minister considers have
appropriate qualifications or experience as are appointed
by the Minister.
(2) If, for any reason, consultation with a body referred to in
subsection (1) (d), (e), (f) or (i) is not possible or practicable, the
Minister may appoint a person to be a member instead of the
member required to be appointed, being a person who, in the
Minister's opinion, is suitably representative of the persons
represented by the bodies referred to in those paragraphs.
(3) Schedule 1 has effect with respect to the members and procedure
of the Advisory Council.
[4] Schedule 1
Insert after section 145:
Schedule 1 Provisions relating to advisory
bodies
(Sections 89F and 115D)
1 Definition
In this Schedule, advisory body means the following:
(a) the Scheme Board,
(b) the Advisory Council.
2 Chairperson
(1) The Minister may appoint an appointed member of an advisory
body as its Chairperson.
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Amendments relating to Home Warranty Insurance Scheme Board and Schedule 5
Home Building Advisory Council
(2) The Minister may appoint an appointed member of the Scheme
Board as its Deputy Chairperson.
(3) An appointment of an appointed member of an advisory body as
its Chairperson or Deputy Chairperson may be for a specified or
unspecified term, but may be revoked at any time by the Minister
in writing for any or no reason.
(4) Such a revocation of appointment as Chairperson or Deputy
Chairperson of the advisory body does not of itself affect a
person's tenure of office as an appointed member of the advisory
body.
3 Acting members
(1) The Minister may, from time to time, appoint a person to act in
the office of an appointed member of an advisory body during the
illness or absence of the member. The person, while so acting,
has and may exercise all the functions of the appointed member
and is taken to be an appointed member of the body.
(2) Subclause (1) extends to the office and functions of Chairperson
or Deputy Chairperson of the advisory body, but the Minister
may instead appoint another appointed member of the body to act
in the office of Chairperson or Deputy Chairperson.
(3) The Minister may remove any person from any office to which
the person was appointed under this clause at any time for any or
no reason.
(4) For the purposes of this clause, a vacancy in the office of an
appointed member is taken to be an absence from office of the
member.
4 Terms of office
Subject to this Schedule, an appointed member of an advisory
body holds office for such period not exceeding 3 years as may
be specified in the instrument of appointment of the member, but
is eligible (if otherwise qualified) for re-appointment.
5 Allowances
A member of an advisory body is entitled to be paid such
allowances as the Minister from time to time determines in
respect of the member.
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Home Building Amendment Bill 2004
Schedule 5 Amendments relating to Home Warranty Insurance Scheme Board and
Home Building Advisory Council
6 Vacancies
(1) The office of an appointed member of an advisory body becomes
vacant if the member:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by letter addressed to the Minister, or
(d) is removed by the Minister from office under this clause,
or
(e) is absent from 3 consecutive meetings of the body of which
reasonable notice has been given to the member personally
or in the ordinary course of post, except on leave granted
by the Minister or unless, before the expiration of 4 weeks
after the last of those meetings, the member is excused by
the Minister for having been absent from those meetings,
or
(f) becomes bankrupt, applies to take the benefit of any law
for the relief of bankrupt or insolvent debtors, compounds
with his or her creditors or makes an assignment of his or
her remuneration for their benefit, or
(g) becomes a mentally incapacitated person, or
(h) is convicted in New South Wales of an offence that is
punishable by imprisonment for 12 months or more or is
convicted elsewhere than in New South Wales of an
offence that, if committed in New South Wales, would be
an offence so punishable.
(2) The Minister may remove an appointed member from office as a
member of an advisory body at any time for any or no reason.
7 Filling of vacancy
(1) If the office of an appointed member of an advisory body
becomes vacant, a person is, subject to this Act, required to be
appointed to fill the vacancy.
(2) The appointment must be made within 2 months of the office
becoming vacant, or such longer time as the Minister considers
appropriate in the circumstances.
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Amendments relating to Home Warranty Insurance Scheme Board and Schedule 5
Home Building Advisory Council
8 Disclosure of pecuniary interests
(1) A member of an advisory body:
(a) who has a direct or indirect pecuniary interest in a matter
being considered or about to be considered at a meeting of
the advisory body, and
(b) whose interest appears to raise a conflict with the proper
performance of the member's duties in relation to the
consideration of the matter,
must, as soon as possible after the relevant facts have come to the
member's knowledge, disclose the nature of the interest at a
meeting of the body.
(2) A disclosure by a member of an advisory body at a meeting of the
body that the member:
(a) is a member, or in the employment, of a specified company
or other body, or
(b) is a partner, or in the employment, of a specified person, or
(c) has some other specified interest relating to a specified
company or other body or to a specified person,
is a sufficient disclosure of the nature of the interest in any matter
relating to the company or other body or to that person that may
arise after the date of the disclosure and that is required to be
disclosed under this clause.
(3) Particulars of any disclosure made under this clause must be
recorded by the members of the advisory body in a book to be
kept for the purpose and that book must be open at all reasonable
hours to inspection by any person on payment of the fee
determined by the members.
9 Effect of certain other Acts
(1) The Public Sector Employment and Management Act 2002 does
not apply to the appointment of an appointed member of an
advisory body. An appointed member is not, as an appointed
member, subject to that Act.
(2) If by or under any Act provision is made:
(a) requiring a person who is the holder of a specified office to
devote the whole of his or her time to the duties of that
office, or
(b) prohibiting the person from engaging in employment
outside the duties of that office,
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Home Building Amendment Bill 2004
Schedule 5 Amendments relating to Home Warranty Insurance Scheme Board and
Home Building Advisory Council
the provision does not operate to disqualify the person from
holding that office and also the office of a member of an advisory
body or from accepting and retaining any remuneration payable
to the person under this Act as a member of the advisory body.
(3) The office of appointed member of an advisory body is for the
purposes of any Act taken not to be an office or place of profit
under the Crown.
10 General procedure
The procedure for the calling of meetings of an advisory body
and the conduct of those meetings is, subject to this Act and the
regulations and any directions of the Minister, to be determined
by the body. The Minister may give such directions for this
purpose as the Minister thinks fit.
11 Meetings
An advisory body is required to meet 4 times during each
calendar year. However, the advisory body may hold additional
meetings as approved by the Minister, and is required to do so as
directed by the Minister.
12 Quorum
The quorum for a meeting of an advisory body is a majority of its
members for the time being.
13 Presiding member
(1) A meeting of an advisory body is to be chaired by:
(a) the Chairperson of the body, or
(b) in the absence of the Chairperson (including a person
appointed under clause 3 to act as Chairperson), the
Deputy Chairperson or another appointed member of the
body elected to chair the meeting by a majority of the
members of the body present.
(2) The member chairing any meeting of an advisory body has a
deliberative vote and, in the event of an equality of votes, has a
second or casting vote.
14 Voting
A decision supported by a majority of the votes cast at a meeting
of an advisory body at which a quorum is present is the decision
of the body.
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Amendments relating to Home Warranty Insurance Scheme Board and Schedule 5
Home Building Advisory Council
15 Transaction of business outside meetings or by telephone or other
means
(1) An advisory body may, if it thinks fit, transact any of its business
by the circulation of papers among all the members of the body
for the time being. A resolution in writing approved by a majority
of those members is taken to be a decision of the body.
(2) An advisory body may, if it thinks fit, transact any of its business
at a meeting at which members (or some members) participate by
telephone, close-circuit television or other means, but only if any
member who speaks on a matter before the meeting can be heard
by the other members.
(3) For the purposes of:
(a) the approval of a resolution under subclause (1), or
(b) a meeting held in accordance with subclause (2),
the Chairperson, Deputy Chairperson and each member have the
same voting rights as they have at an ordinary meeting of the
body.
(4) A resolution approved under subclause (1) is, subject to the
regulations, to be recorded in the minutes of the meetings of the
advisory body.
(5) Papers may be circulated among members for the purposes of
subclause (1) by facsimile or other transmission of the
information in the papers concerned.
16 Minutes
(1) An advisory body must cause full and accurate minutes to be kept
of the proceedings of each meeting of the body.
(2) The advisory body is to cause a copy of the minutes of each
meeting to be forwarded to the Minister within 14 days after the
meeting.
17 First meeting
The first meeting of an advisory body is to be called in such
manner as the Minister determines.
Page 33
Home Building Amendment Bill 2004
Schedule 6 Miscellaneous amendments
Schedule 6 Miscellaneous amendments
(Section 3)
[1] Section 3 Definitions
Omit the definition of Director-General from section 3 (1). Insert instead:
Director-General means:
(a) the Commissioner for Fair Trading, Department of
Commerce, or
(b) if there is no such position in the Department--the
Director-General of the Department.
[2] Section 95 Owner-builder insurance
Omit "If" from section 95 (4). Insert instead "Subject to subsection (4A), if".
[3] Section 95 (4A)
Insert after section 95 (4):
(4A) A contract is not voidable as referred to in subsection (4) if:
(a) the owner-builder obtained a certificate of insurance
evidencing a contract of insurance that complies with this
Act in relation to the work or proposed work before
entering the contract concerned, and
(b) before completion of the contract, the owner-builder
served on the purchaser (or a legal practitioner acting on
the purchaser's behalf) a certificate of insurance, in the
form prescribed by the regulations, evidencing that
contract of insurance.
[4] Section 96 Insurance in relation to residential building work not carried
out under contract
Omit "If" from section 96 (3A). Insert instead "Subject to subsection (3B), if".
[5] Section 96 (3B)
Insert after section 96 (3A):
(3B) A contract is not voidable as referred to in subsection (3A) if:
(a) the person obtained a certificate of insurance evidencing a
contract of insurance that complies with this Act in relation
to the residential building work before entering the
contract concerned, and
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Home Building Amendment Bill 2004
Miscellaneous amendments Schedule 6
(b) before completion of the contract, the person served on the
purchaser (or a legal practitioner acting on the purchaser's
behalf) a certificate of insurance, in the form prescribed by
the regulations, evidencing that contract of insurance.
[6] Section 96A Obligations of developers in relation to insurance
Omit "If" from section 96A (3). Insert instead "Subject to subsection (3A), if".
[7] Section 96A (3A)
Insert after section 96A (3):
(3A) A contract is not voidable as referred to in subsection (3) if:
(a) the person obtained a certificate of insurance evidencing a
contract of insurance that complies with this Act in relation
to the residential building work before entering the
contract concerned, and
(b) before completion of the contract, the person served on the
purchaser (or a legal practitioner acting on the purchaser's
behalf) a certificate of insurance, in the form prescribed by
the regulations, evidencing that contract of insurance.
[8] Section 120 Register
Insert after section 120 (3):
(4) The Director-General may remove any particular from, or
otherwise amend, the register if the particular is shown to the
satisfaction of the Director-General to be, or is to the knowledge
or in the opinion of the Director-General, false, erroneous,
misleading or unfairly prejudicial to the interests of the holder of
the contractor licence, supervisor certificate, tradesperson
certificate, building consultancy licence or owner-builder permit
concerned.
[9] Section 123 Service of notices or other documents
Omit section 123 (1) (a) (iii). Insert instead:
(iii) by posting it in a letter addressed to him or her at the
address last known to the Director-General of his or
her place of residence, or
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Home Building Amendment Bill 2004
Schedule 6 Miscellaneous amendments
[10] Section 123 (1) (b) (iii)
Omit the subparagraph. Insert instead:
(iii) by posting it in a letter addressed to the firm or body
corporate at the address last known to the
Director-General of its only or principal place of
business.
Page 36
Home Building Amendment Bill 2004
Amendments inserting savings and transitional provisions Schedule 7
Schedule 7 Amendments inserting savings and
transitional provisions
(Section 3)
[1] Schedule 4 Savings and transitional provisions
Insert at the end of clause 2 (1):
Home Building Amendment Act 2004
[2] Schedule 4, Part 12
Insert after clause 73:
Part 12 Provisions consequent on Home Building
Amendment Act 2004
74 Definition
In this Part:
amending Act means the Home Building Amendment Act 2004.
75 Applications for authorities and renewals and restoration of
authorities
(1) Sections 20, 25, 32B and 40, as amended by the amending Act,
do not apply to an application for an authority or for renewal or
restoration of an authority made but not determined before the
commencement of the amendment.
(2) The Home Building Regulation 2004, as amended by the
amending Act, does not apply to an application for an authority
made but not determined before the commencement of the
amendment.
76 Disciplinary proceedings
(1) The amendments made by Schedule 3 to the amending Act do not
apply to proceedings commenced under Part 4 before the
commencement of the amendments. Part 4, as in force
immediately before the commencement of those amendments,
continues to apply to those proceedings.
(2) The amendments made by Schedule 3 to the amending Act
extend to any complaint made before the commencement of those
amendments in relation to which proceedings have not
commenced.
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Home Building Amendment Bill 2004
Schedule 7 Amendments inserting savings and transitional provisions
(3) A complaint may be made, and disciplinary action or proceedings
may be taken under Part 4, after the commencement of the
amendments made by Schedule 3 to the amending Act in relation
to conduct or events that occurred before the commencement of
those amendments.
77 Exchange of information
Section 103AD, as inserted by the amending Act, extends to
relevant information obtained before the commencement of that
amendment.
Page 38
Home Building Amendment Bill 2004
Amendment of Home Building Regulation 2004 Schedule 8
Schedule 8 Amendment of Home Building
Regulation 2004
(Section 4)
[1] Clause 25 General requirements for obtaining certain authorities under
the Act
Omit clause 25 (1) (a) (iii), (iv) and (v).
[2] Clause 28A
Insert after clause 28:
28A Disqualifications from holding authorities
(1) For the purposes of the Act, a person is disqualified from holding
an authority (other than an owner-builder permit) if the person:
(a) has been convicted in New South Wales or elsewhere of an
offence involving dishonesty within the last 10 years,
unless the Director-General has determined under
subclause (2) that the offence should be ignored, or
(b) has been convicted within the last 5 years for an offence
under section 46A (Lending of authority prohibited) of the
Act, unless the Director-General has determined under
subclause (2) that the offence should be ignored, or
(c) is disqualified from holding a licence, certificate of
registration or other authority under a corresponding law
or is the holder of such a licence, certificate of registration
or other authority that is suspended, or
(d) is the holder of a licence, permit or other authority that is
suspended under the Fair Trading Act 1987 or any other
Act administered by the Minister, or
(e) is in partnership with a person who is, or is a director of a
corporation that is, disqualified from holding an authority,
or
(f) is for the time being declared to be a person who is
disqualified from holding an authority under Part 4
(Disciplinary proceedings) of the Act, or
(g) has failed to pay any monetary penalty payable by the
person under Part 4 (Disciplinary proceedings) of the Act
or has failed to comply with a condition imposed under
section 62 (d) of the Act, and the failure continues, or
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Home Building Amendment Bill 2004
Schedule 8 Amendment of Home Building Regulation 2004
(h) is in breach of any provision of the Act or this Regulation
that is prescribed by this Regulation as a disqualifying
breach.
(2) The Director-General may determine that an offence committed
by a person should be ignored for the purposes of this clause
because of the time that has passed since the offence was
committed or because of the triviality of the acts or omissions
giving rise to the offence.
(3) In this clause:
corresponding law means a law of another Australian
jurisdiction that is declared by the Minister from time to time by
an order published in the Gazette to be a law that corresponds to
the Act.
[3] Clause 39A
Insert before clause 40:
39A General requirements for renewal or restoration of authorities
(1) Before an authority is renewed or restored, the Director-General
must be satisfied that each relevant person:
(a) is not a mentally incapacitated person, and
(b) is not disqualified from holding the authority, and
(c) is not bankrupt and is not a director or person concerned in
the management of a company that is the subject of a
winding up order or for which a controller or administrator
has been appointed or that has been voluntarily wound up,
and
(d) was not bankrupt and was not a director or person
concerned in the management of a company when the
company was the subject of a winding up order, or when a
controller or administrator was appointed, within a period
of 3 years before the date of application, unless the
Director-General is satisfied that the person took all
reasonable steps to avoid the bankruptcy, liquidation or
administration, and
(e) is not subject to any order of the Tribunal that has not been
satisfied within the period required by the Tribunal, and
(f) has not had what the Director-General considers to be an
unreasonable number of complaints made against him, her
or it, and
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Home Building Amendment Bill 2004
Amendment of Home Building Regulation 2004 Schedule 8
(g) has not had what the Director-General considers to be an
unreasonable number of formal cautions given to him, her
or it, and
(h) has not had what the Director-General considers to be an
unreasonable number of penalty notices issued against
him, her or it (being penalty notices for offences under the
Act that were not dealt with by a court and dismissed), and
(i) has not carried out work in respect of which the
Director-General considers an unreasonable number of
insurance claims have been paid.
(2) For the purposes of this clause, each of the following persons is a
relevant person in relation to an application for renewal or
restoration of an authority:
(a) the applicant,
(b) if the applicant is a partnership:
(i) every partner of the applicant, and
(ii) if a member of the partnership is a corporation--
every director of that corporation,
(c) if the applicant is a corporation--every director of the
corporation.
(3) Subclause (1) (c) and (d) do not prevent the Director-General
from renewing or restoring a supervisor or tradesperson
certificate.
(4) Subclause (1) (e) does not prevent the Director-General from
renewing or restoring an authority if the Director-General is
satisfied that the person:
(a) has complied with the order of the Tribunal after the period
required by the Tribunal, and
(b) has a reasonable excuse for the failure to comply with the
order within that period.
[4] Clauses 84 and 85
Omit the penalty provisions wherever occurring. Insert instead:
Maximum penalty: 20 penalty units in the case of a corporation
and 10 penalty units in any other case.
Page 41
Home Building Amendment Bill 2004
Schedule 8 Amendment of Home Building Regulation 2004
[5] Clause 86 Hazardous specialist work: do-it-yourself publications and
public addresses
Omit the penalty provision in clause 86 (2). Insert instead:
Maximum penalty: 40 penalty units in the case of a corporation
and 20 penalty units in any other case.
Page 42
Home Building Amendment Bill 2004
Amendment of other Acts and regulations Schedule 9
Schedule 9 Amendment of other Acts and
regulations
(Section 5)
9.1 Dangerous Goods Act 1975 No 68
Section 41 Regulations
Omit "registration certificate" from section 41 (3A) (a).
Insert instead "tradesperson certificate".
9.2 Dangerous Goods (Gas Installations) Regulation 1998
[1] Clause 7 Gasfitting work to be carried out by qualified persons
Omit "registration certificate" from clause 7 (b).
Insert instead "tradesperson certificate".
[2] Dictionary
Omit the definition of registration certificate.
Insert instead in alphabetical order:
tradesperson certificate, in relation to a particular kind of
gasfitting work, means a tradesperson certificate in force under
the Home Building Act 1989 authorising the holder to carry out
that kind of work under general supervision.
9.3 Dangerous Goods (General) Regulation 1999
[1] Clause 247 Work on LP Gas transport containers
Omit "registration certificate" from clause 247 (2) (b).
Insert instead "tradesperson certificate".
[2] Clause 247 (3), definition of "registration certificate"
Omit the definition. Insert instead in alphabetical order:
tradesperson certificate, in relation to a particular kind of work,
means a tradesperson certificate in force under the Home
Building Act 1989 authorising the holder to carry out that kind of
work under general supervision.
Page 43
Home Building Amendment Bill 2004
Schedule 9 Amendment of other Acts and regulations
9.4 Fair Trading Act 1987 No 68
[1] Section 4 Definitions
Omit the definition of advisory council from section 4 (1). Insert instead:
advisory council means any of the councils established by
Divisions 57 or 9 of Part 2.
[2] Part 2, Division 8 Home Building Advisory Council
Omit the Division.
[3] Schedule 5 Savings and transitional provisions
Insert after clause 11E:
11F Home Building Amendment Act 2004
(1) In this clause, amending Act means the Home Building
Amendment Act 2004.
(2) A person ceases to hold office as a member or Chairperson of the
Home Building Advisory Council constituted under this Act on
the repeal of Division 8 of Part 2 by the amending Act. The
person is not entitled to any remuneration or compensation by
reason of ceasing to hold any such office.
9.5 Gas Supply (Safety Management) Regulation 2002
[1] Clause 29C Gasfitting work to be carried out by, or under the supervision
of, suitably qualified gasfitters
Omit "registration certificate" from clause 29C (1) (b).
Insert instead "tradesperson certificate".
[2] Clause 29C (2), definition of "registration certificate"
Omit the definition. Insert instead in alphabetical order:
tradesperson certificate, in relation to a particular kind of
gasfitting work, means a tradesperson certificate in force under
the Home Building Act 1989 authorising the holder to carry out
that kind of work under general supervision.
9.6 Hunter Water Act 1991 No 53
Section 69 Work for water supply, sewerage or drainage
Omit "certificate of registration" from section 69 (1) (c).
Insert instead "tradesperson certificate".
Page 44
Home Building Amendment Bill 2004
Amendment of other Acts and regulations Schedule 9
9.7 Local Government Act 1993 No 30
Section 634 Water, sewerage and stormwater drainage offences
Omit "registration certificate" from section 634 (1) (b).
Insert instead "tradesperson certificate".
9.8 Sydney Water Act 1994 No 88
Section 99 Work for water supply, sewerage or stormwater drainage
Omit "certificate of registration" from section 99 (1) (c).
Insert instead "tradesperson certificate".
9.9 Water Management Act 2000 No 92
Section 351 Unlicensed plumbing work
Omit "registration certificate" from section 351 (c).
Insert instead "tradesperson certificate".
Page 45
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