BUILDING AND DEVELOPMENT CERTIFIERS ACT 2018 - SCHEDULE 1

BUILDING AND DEVELOPMENT CERTIFIERS ACT 2018 - SCHEDULE 1

SCHEDULE 1 – Savings, transitional and other provisions

Part 1 - General

1 Regulations

(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act.

(2) Any such provision--

(a) may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date, and

(b) has effect despite anything to the contrary in this Schedule.

(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as--

(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

(4) Without limiting subclauses (1) and (2), regulations made for the purposes of this clause may amend this Schedule to provide for additional or different savings and transitional provisions instead of including the provisions in the regulations.

Part 2 - Provisions consequent on enactment of this Act

2 Definitions

In this Part--


"existing certificate of accreditation" means a certificate of accreditation under the former Act.


"former Act" means the Building Professionals Act 2005 .


"repeal day" means the day on which the former Act is repealed.

3 Saving of existing certificates of accreditation

(1) Subject to the regulations, an existing certificate of accreditation that is in force immediately before the repeal day--

(a) is taken to be registration in the corresponding class (as prescribed by the regulations) granted under this Act, and

(b) continues, unless it is sooner surrendered by the holder or suspended or revoked under this Act, in force for the unexpired portion of its term, and

(c) cannot be renewed.

(2) The conditions to which an existing certificate of accreditation is subject are, subject to the regulations, taken to be conditions imposed by the Secretary under this Act and the conditions may be varied or revoked in accordance with this Act.

(3) An existing certificate of accreditation that, on the repeal day, is suspended is taken to be in force for the purposes of subclause (1) but the suspension continues for the unexpired portion of its term.

4 Pending applications

(1) An application for an existing certificate of accreditation that was made under the former Act and that was not determined before the repeal day is taken to be an application for registration in the corresponding class (as determined under clause 3) made to the Secretary under this Act and is to be dealt with accordingly subject to the other provisions of this clause.

(2) Any fee paid under the former Act with respect to the application for the existing certificate of accreditation is taken to have been paid towards the application that is taken to have been made under this Act and any difference between the fee paid and the appropriate fee required to be paid under this Act is to be addressed by requiring the applicant to pay the balance of any underpayment or refunding to the applicant the balance of any overpayment.

5 Appeals and reviews

(1) Any appeal made, or review commenced, with respect to an existing certificate of accreditation (or an application for an existing certificate of accreditation) that has not been determined before the repeal day is to be determined as if the former Act and the Building Professionals Regulation 2007 had not been repealed.

(2) Clause 3 applies to the existing certificate of accreditation as in force following the appeal or review.

6 Offences under Building Professionals Act 2005 are relevant offences

In this Act, a reference to a
"relevant offence" is taken to include a reference to an offence against the former Act or the regulations made under that Act.

7 Disciplinary action

(1) Conduct of an accredited certifier occurring before the repeal day that is unsatisfactory professional conduct or professional misconduct under the former Act is a ground for taking disciplinary action under Part 4 of this Act.

(2) Any complaint made to the Building Professionals Board under the former Act that has not been finally resolved by the repeal day is taken to be a complaint made to the Secretary under Part 4 of this Act and may be dealt with accordingly.

(3) With respect to a matter to which, because of this clause, Part 4 of this Act applies, the Secretary may rely on any step taken by the Building Professionals Board under the former Act as if it were an equivalent step taken by the Secretary under Part 4 of this Act.

8 Dissolution of Building Professionals Board

(1) The Building Professionals Board is dissolved on the repeal of section 75 of the former Act.

(2) On the dissolution of the Building Professionals Board, the assets, rights and liabilities of the Building Professionals Board immediately before its dissolution become the assets, rights and liabilities of the Crown.

(3) The persons who were members of the Building Professionals Board immediately before its dissolution cease to be members and are not entitled to any remuneration or compensation because of the loss of that office.

(4) In this clause--


"assets" means any legal or equitable estate or interest (whether present or future, whether vested or contingent and whether personal or assignable) in real or personal property of any description (including money), and includes securities, choses in action and documents.


"liabilities" means any liabilities, debts or obligations (whether present or future, whether vested or contingent and whether personal or assignable).


"rights" means any rights, powers, privileges or immunities (whether present or future, whether vested or contingent and whether personal or assignable).

9 Investigations into councils

Any investigation commenced by the Building Professionals Board under section 45 of the former Act but not finalised on the dissolution of the Board is taken to have been an investigation commenced by the Secretary under section 107 of this Act and may be carried on by the Secretary.

10 Requirement that certification work be carried out under written contract

Section 31 does not apply to a registered certifier with respect to certification work if the registered certifier (or the registered certifier's employer) was appointed to carry out the certification work before the commencement of that section.

11 Principal certifier to notify client of certain changes

Section 33 applies to a person whether or not the person was appointed as a principal certifier before the commencement of that section.

12 Abolition of Building Professionals Board Fund

(1) The Building Professionals Board Fund (the
"former fund" ) under the former Act is abolished on the repeal of section 81 of the former Act.

(2) Any balance standing to the credit of the former fund is to be transferred to the Secretary.

(3) Any money that was payable into the former fund immediately before its abolition is to be paid to the Secretary.

13 Registered body corporate with insufficient registered directors

(1) The Secretary may grant an exemption to a registered body corporate from the requirements of section 41 (1) if satisfied that the body corporate is taking steps to comply with that provision.

(2) Each exemption granted under this section remains in force for 6 months or a shorter period that the Secretary may determine.

(3) More than 1 exemption may be granted to a registered body corporate under this clause.

14 Existing competent fire safety practitioners

(1) A person who immediately before the repeal of clause 167A of the Environmental Planning and Assessment Regulation 2000 was recognised by the Secretary as a competent fire safety practitioner for the purposes of one or more provisions of that Regulation is taken to hold an accreditation under this Act that authorises the person to carry out the regulated work under the provisions of the Environmental Planning and Assessment Regulation 2021 or the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 that correspond to the provisions of the Environmental Planning and Assessment Regulation 2000 to which the recognition related.

(2) The accreditation remains in force for the period for which the recognition would have remained in force had clause 167A of that Regulation not been repealed, or for 5 years from that repeal (whichever is the shorter period), but may be cancelled or suspended in accordance with this Act before the end of that period.

(3) The Secretary is taken to be the regulating accreditation authority in respect of the accreditation until the Secretary gives a direction under section 56 (4) with respect to the accreditation.

(4) For the purposes of this clause, the Secretary may exercise any function of an accreditation authority even if the Secretary has not adopted an accreditation scheme.

(5) Any reference to a competent fire safety practitioner is taken to include a reference to an accredited practitioner (fire safety) within the meaning of the Environmental Planning and Assessment Regulation 2021 .

15 Fast track initial approval for existing training organisations

(1) The Secretary may grant an approval as an accreditation authority to a body corporate that trained a person who is taken (under clause 14) to hold an accreditation.

(2) Part 6 of this Act (other than sections 62 and 63) applies to an approval granted under this clause.

(3) In determining to grant an approval under this clause, the Secretary only needs to be satisfied that the body corporate provided training that enabled a person to be recognised by the Secretary as a competent fire safety practitioner.

(4) The fact that a body corporate is not a body corporate of a kind referred to in section 59 (1) does not prevent an approval being granted under this clause.

(5) An approval granted under this clause cannot be renewed under this clause and must instead be renewed under Part 6 of this Act.

16 References to matters in the Building Professionals Act 2005

(1) In any Act or instrument a reference to a term (within the meaning of the former Act) set out in the table to this clause is taken to include a reference to the corresponding term within the meaning of this Act--

Term under former Act	Corresponding term under this Act
accredited body corporate	registered body corporate
accredited certifier	registered certifier
Building Professionals Board	the Secretary

(2) In any Act or instrument, a reference to accreditation of a particular class is taken to include a reference to registration in the corresponding class (as determined under clause 3).

Part 3 - Provisions consequent on enactment of Better Regulation and Customer Service Legislation Amendment (Bushfire Relief) Act 2020

17 Definitions

In this Part--


"relevant period" means the period--

(a) starting on 18 July 2019, and

(b) ending immediately before the commencement of this Act.

18 Power to waive, reduce, postpone or refund fees applies to events before commencement

(1) To remove any doubt, the power of the Secretary to waive, reduce, postpone or refund, in whole or part, a fee payable or paid under this Act or the regulations applies in relation to--

(a) a person who was suffering financial hardship--

(i) during the relevant period, or

(ii) because of events that happened during the relevant period, or

(b) special circumstances--

(i) that existed during the relevant period, or

(ii) that exist because of events that happened during the relevant period.

(2) Also to remove any doubt, the power to waive, reduce, postpone or refund fees under subclause (1) extends to a fee payable or paid under the repealed Act or repealed regulations.