Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

This Bill is cognate with the Environmental Planning and Assessment Amendment
Bill 2008.

Overview of Bill

The object of this Bill is to amend the Building Professionals Act 2005 (the Principal
Act):

(a) to require councils to ensure that certain certification work done on their
behalf is undertaken by appropriately accredited certifiers under the Principal
Act, and

(b) to facilitate the accreditation of persons undertaking certification work only on
behalf of councils, and

(c) to introduce accreditation of building professionals who will be required to
undertake certain design work under the Environmental Planning and
Assessment Act 1979, and

(d) to enable bodies corporate to be accredited as accredited certifiers and to
impose requirements on them in relation to the carrying out of certification
work, and

(e) to introduce a number of requirements with respect to accredited certifiers
aimed at preventing improper conduct, and

(f) to enable the Building Professionals Board (the Board) to impose the full
range of sanctions currently only available to the Administrative Decisions
Tribunal against an accredited certifier or building professional found guilty
of unsatisfactory professional conduct or professional misconduct and to make
other changes to the disciplinary proceedings provisions of the Principal Act.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.

Clause 3 is a formal provision that gives effect to the amendments to the Building
Professionals Act 2005 set out in Schedules 1 and 2.

Clause 4 provides for the repeal of the proposed Act after all the amendments made
by the proposed Act have commenced. Once the amendments have commenced the
proposed Act will be spent and section 30 of the Interpretation Act 1987 provides
that the repeal of an amending Act does not affect the amendments made by that Act.

Schedule 1 Principal Amendments
Certification work carried out by councils and accreditation of persons
to carry out such work
Schedule 1 [2] inserts a definition of certification work to mean the issuing of
complying development certificates and Part 4A certificates under the
Environmental Planning and Assessment Act 1979 and strata certificates under the
strata legislation, the carrying out of the functions of a principal certifying authority
under the Environmental Planning and Assessment Act 1979 and the carrying out of
certain inspections under that Act. Currently, certification work can be undertaken
by accredited certifiers or by councils.

Schedule 1 [44] inserts proposed Part 6A into the Principal Act consisting of the
following provisions:

Proposed section 74A requires a council to ensure that prescribed certification work
done on behalf of a council is done by an appropriately qualified accredited certifier.

Proposed section 74B requires councils to provide such information to the Board,
and keep such records, relating to the carrying out of their certification functions as
are prescribed by the regulations.

Proposed section 74C enables the Board, with the approval of the Minister, to exempt
a council from the requirements of the proposed Part and the duty under section 109E
(1AA) of the Environmental Planning and Assessment Act 1979 of carrying out
certification work.

Schedule 1 [5] and [7] amend section 5 of the Principal Act to provide that an
application for accreditation to carry out certification work only on behalf of a
particular council may not be made except on the recommendation of that council.

The amendments also enable regulations to be made in relation to the making of
recommendations.

Schedule 1 [8] inserts proposed section 5A into the Principal Act which provides,
among other things, that the regulations may prescribe categories of accreditation in
relation to persons carrying out certification work only on behalf of councils.

Schedule 1 [11] inserts proposed section 6A into the Principal Act to provide that the
Board may not refuse an application to accredit a person to carry out certification
work only on behalf of a council on the grounds of qualifications or not being a fit
and proper person unless it has information that gives it reason to believe it should
refuse the application on those grounds.

Schedule 1 [17] amends section 8 of the Principal Act to enable the Board to cancel
a certificate of accreditation that is subject to a condition that the holder may carry
out certification work only as the employee of a particular council if the holder ceases
to be employed by the council or ceases to carry out certification work on behalf of
the council.

Schedule 1 [38] amends section 66 of the Principal Act to ensure that a person does
not commit an offence under that section by reason only of being employed or
engaged by the council to do certain certification work.

Accreditation of building professionals and issue of design certificates
Proposed section 109IA is to be inserted into the Environmental Planning and
Assessment Act 1979 by the Environmental Planning and Assessment Amendment
Bill 2008 with which this Bill is cognate. That proposed section provides that a
design certificate is to be obtained from a person appropriately accredited under the
Principal Act before a Part 4A certificate can be issued in respect of an aspect of
development, but only if the regulations under that Act so require.

Schedule 1 [8] inserts proposed section 5A into the Principal Act which, among
other things, provides for a new class of accreditation for building professionals. It is
intended that the new class of accreditation will include accreditation of
appropriately qualified persons to issue design certificates.

Schedule 1 [3] amends section 4 of the Principal Act to enable the establishment of
an accreditation scheme in relation to building professionals.

Schedule 1 [14] amends section 8 of the Principal Act as a consequence of the
broadening of the accreditation under the Act to building professionals other than
accredited certifiers.

Schedule 1 [42] substitutes section 72 of the Principal Act to extend the current
offence in that section so that it prevents a building professional doing anything for
which accreditation is required unless authorised by his or her certificate of
accreditation.

Schedule 1 [45] inserts proposed section 84A into the Principal Act to include
offences in relation to accredited building professionals (similar to the offences in
section 84 in relation to accredited certifiers) prohibiting the offering to, or
acceptance by, a building professional of benefits for acting in contravention of the
Environmental Planning and Assessment Act 1979 and the regulations under that Act
in carrying out a building professional’s functions.

Schedule 1 [46] amends section 85 of the Principal Act to make it an offence for a
person to issue a design certificate under the Environmental Planning and
Assessment Act 1979 if the person is not authorised to issue such certificates, or make
a false or misleading statement in connection with such a certificate.

Accreditation of bodies corporate
Currently, the Principal Act only provides for individuals to be accredited as
accredited certifiers.

Schedule 1 [4] and [6] amend section 5 of the Principal Act to enable a body
corporate to be accredited as an accredited certifier.

Schedule 1 [8] inserts proposed section 5A into the Principal Act to provide, among
other things, that a certificate of corporate accreditation may be issued by the Board
to a body corporate that has at least one director who is an accredited certifier and has
as directors or employs at least two other persons who are accredited certifiers.

Schedule 1 [21] amends section 11 of the Principal Act to make a consequential
amendment.

Schedule 1 [13] amends section 7 of the Principal Act to set out the circumstances
in which the Board may refuse to issue or renew a certificate of corporate
accreditation.

Schedule 1 [19] amends section 8 of the Principal Act to set out the circumstances
in which the Board can suspend or cancel a certificate of corporate accreditation
otherwise than where a complaint has been made.

Schedule 1 [37] amends section 61 of the Principal Act to require the holder of a
certificate of corporate accreditation to notify the Board of certain matters.

Schedule 1 [39] amends section 66 of the Principal Act to provide for the way in
which the offence currently contained in section 66 (1) (being an offence that
prevents an accredited certifier issuing a Part 4A certificate or complying
development certificate in certain circumstances) will apply to the issuing of such
certificates by directors or employees of accredited bodies corporate.

Schedule 1 [42] inserts proposed sections 72A, 72B and 72C into the Principal Act.

Proposed section 72A sets out the responsibilities of directors of an accredited body
corporate who are accredited certifiers (accredited certifier directors). Those
requirements include ensuring that the body corporate complies with the Principal
Act in the carrying out of certification work and ensuring that certification work is
undertaken by a director or employee who holds accreditation authorising the
carrying out of the work.

Proposed section 72B makes it clear that an accredited certifier who is a director of
or employed by an accredited body corporate, or employed by a council, to do
certification work on its behalf is required to comply with the relevant laws applying
to the carrying out of that work.

Proposed section 72C sets out certain requirements to be complied with by accredited
bodies corporate, including ensuring that certification work undertaken on their
behalf is undertaken by a director or employee who holds accreditation authorising
the carrying out of the work.

Schedule 1 [48] inserts proposed section 93A into the Principal Act to provide that
if a corporation contravenes a provision of the Principal Act or the regulations, a
director of the corporation or a person concerned in the management of the
corporation is also taken to have contravened the provision if he or she knowingly
authorised or permitted the contravention.

Schedule 1 [9], [12], [15], [16] and [20] make consequential amendments.

Additional requirements with respect to accredited certifiers
Schedule 1 [18] amends section 8 of the Principal Act to enable the Board to suspend
or cancel a certificate of individual accreditation if the Board is of the opinion that
the holder is not a fit and proper person.

Schedule 1 [22] amends section 12 of the Principal Act to extend the circumstances
in which the Board can take urgent action to suspend or place conditions on an
accredited certifier’s accreditation (and now a building professional’s accreditation).

The new circumstances are where the Board is satisfied that the accreditation holder
concerned has persistently contravened the Principal Act, the Environmental
Planning and Assessment Act 1979, the Strata Schemes (Freehold Development) Act
1973 or the Strata Schemes (Leasehold Development) Act 1986, or the regulations
under those Acts, and is likely to continue to do so. Schedule 1 [23] substitutes
section 15 of the Principal Act to allow the Board to extend the period of suspension
without the need to obtain the approval of the President or Deputy President of the
Board (as is currently required).

Schedule 1 [36] substitutes section 60 of the Principal Act to enable the Board, when
it requires an accreditation holder to provide copies of documents or records, to
require also that the accreditation holder is to verify those documents or records in a
specified manner.

Schedule 1 [40] inserts proposed sections 66A and 66B into the Principal Act.

Proposed section 66A makes it an offence for an accredited certifier to obtain income
from certain certification work carried out for the same owner, principal contractor
or person who engages the principal contractor if the income would exceed the limit
prescribed by the regulations. The offence does not apply to income that an
accredited certifier obtains when working on behalf of a council or as an employee
of an accredited body corporate.

Proposed section 66B makes it an offence for an accredited certifier to issue more
development certificates to the same owner, principal contractor or person who
engages the principal contractor than the number prescribed by the regulations when
carrying out certification work on behalf of a council or as an employee of an
accredited body corporate.

Schedule 1 [41] inserts proposed Division 3A into Part 6 of the Principal Act
containing proposed sections 71A–71C.

Proposed section 71A requires an accredited certifier to obtain the written approval
of the Board before carrying out certification work in relation to development of a
kind prescribed by the regulations if the person for whom the development is carried
out, or the contractor or other person carrying out the development, is a prescribed
person. A prescribed person is defined as a person included on a list kept by the
Board under proposed section 71B.

Proposed section 71B enables the Board to keep a list of prescribed persons. A person
may only be included in the list in accordance with the regulations. The proposed
section also provides for the procedure to be followed by the Board when including
a person on the list or removing a person from the list.

Proposed section 71C protects the State, the Board and certain others from claims for
damages or other compensation in connection with the exercise of functions under
the proposed Division.

Schedule 1 [43] inserts proposed section 73A into the Principal Act to enable the
regulations to provide that a contract relating to the appointment of an accredited
certifier must contain certain provisions or may not contain certain provisions.

Schedule 1 [47] amends section 85 of the Principal Act to make it an offence for a
person to falsely represent that he or she holds accreditation that authorises the doing
of something under the Environmental Planning and Assessment Act 1979, the Strata
Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold
Development) Act 1986 for which such accreditation is required.

Changes to disciplinary proceedings
Schedule 1 [28]–[30] amend section 31 of the Principal Act to remove the current
requirement that the Board must refer a complaint to the Administrative Decisions
Tribunal (the Tribunal) if satisfied that there is a reasonable likelihood that the
accreditation holder concerned will be found guilty of professional misconduct.

Instead, the Board will be able to deal with those matters itself or may refer any such
complaint to the Tribunal. The Board will be able to impose the same range of
sanctions for professional misconduct or unsatisfactory professional conduct as are
available to the Tribunal. Those sanctions include suspension or cancellation of
accreditation. Also, the amendments recast the current sanctions to reflect the
extension of the disciplinary provisions to accredited bodies corporate, accredited
certifiers who are directors of accredited bodies corporate and building professionals.

Schedule 1 [31] amends section 34 of the Principal Act to recast the current sanctions
available to the Tribunal to reflect the extension of the disciplinary provisions to
accredited bodies corporate, accredited certifiers who are directors of accredited
bodies corporate and building professionals. Schedule 1 [32] substitutes section 36
of the Principal Act consequentially.

Schedule 1 [24] and [25] amend section 21 of the Principal Act to make it clear that
the Board may decline to consider a complaint until any further particulars that it has
required are supplied by the complainant. The amendments also provide that the
Board may use its powers to obtain evidence at a preliminary stage of its dealing with
a complaint.

Schedule 1 [26] substitutes section 22 of the Principal Act to enable the Board, at any
time in dealing with a complaint, to decide to take no further action. If the Board
makes such a decision, it must give the complainant and the accreditation holder
concerned written reasons for its decision.

Schedule 1 [27] substitutes section 29 of the Principal Act to provide that when an
authorised officer prepares a report into an investigation of a complaint against an
accreditation holder, a copy of the report is not to be given to the Board to consider
until the accreditation holder has had a chance to make submissions. Those
submissions are to accompany the copy of the report given to the Board. At present,
a copy of the report is given to the Board at the same time as it is given to the
accreditation holder.

Schedule 1 [33] substitutes section 45 of the Principal Act to make it clear that the
Board may investigate the activities of a council in its capacity as a certifying
authority whether or not a complaint has been made. The amendments also enable
the Board to take action, as if a complaint had been made, against an accreditation
holder who, as a result of such an investigation, the Board thinks may be guilty of
unsatisfactory professional conduct or professional misconduct.

Schedule 1 [34] amends section 46 of the Principal Act to enable the Board to
investigate the work and activities of accredited certifiers when carrying out
certification work on behalf of a council, accredited certifier directors of accredited
bodies corporate and building professionals. Currently, the section only enables the
Board to carry out investigations of certifying authorities.

Schedule 1 [35] amends sections 48, 49 and 57 of the Principal Act to make it clear
that the investigation powers of the Board and its authorised officers extend to
matters being dealt with in proceedings before the Tribunal on an application or
referral under the Principal Act.

Miscellaneous amendments
Schedule 1 [1] and [2] amend section 3 of the Principal Act to include some new
terms.

Schedule 1 [10] amends section 6 of the Principal Act to enable the Board to
determine an application for accreditation after the Board has been taken to have
refused the application because it was not dealt with in the specified time.

Schedule 1 [49] amends section 94 of the Principal Act to enable the regulations to
provide for exemptions from all or any of the provisions of the Principal Act or the
regulations.

Schedule 1 [50] amends section 94 of the Principal Act to enable the regulations to
adopt a publication as in force from time to time and to create offences.

Schedule 1 [51] amends Schedule 2 to the Principal Act to enable savings and
transitional regulations to be made for the purposes of the proposed Act.

Schedule 1 [52] amends Schedule 2 to the Principal Act to insert savings and
transitional provisions consequent on the enactment of the proposed Act.

Schedule 2 Consequential amendments
Schedule 2 contains amendments to the Principal Act consequential on the
amendments made by Schedule 1. Those amendments include changing references
to accredited certifiers in certain provisions to accreditation holders to take account
of the accreditation of building professionals. The amendments also include inserting
a definition of unsatisfactory professional conduct that relates to building
professionals.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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