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Queensland
BUILDING AND
CONSTRUCTION INDUSTRY
PAYMENTS BILL 2003
Queensland
BUILDING AND CONSTRUCTION
INDUSTRY PAYMENTS BILL 2003
TABLE OF PROVISIONS
Section Page
PART 1--PRELIMINARY
Division 1--Introduction
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2 Commencement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Division 2--Application and operation of Act
3 Application of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4 Effect of giving notice of claim of charge under Subcontractors'
Charges Act 1974 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5 Act does not limit claimant's other rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Division 3--Object of Act
7 Object of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8 How object is to be achieved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Division 4--Interpretation
9 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
10 Meaning of "construction work" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11 Meaning of "related goods and services" . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
PART 2--RIGHTS TO PROGRESS PAYMENTS
12 Rights to progress payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
13 Amount of progress payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
14 Valuation of construction work and related goods and services . . . . . . . . . . 15
15 Due date for payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
16 Effect of "pay when paid" provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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PART 3--PROCEDURE FOR RECOVERING PROGRESS
PAYMENTS
Division 1--Payment claims and payment schedules
17 Payment claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
18 Payment schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
19 Consequences of not paying claimant if no payment schedule. . . . . . . . . . . 19
20 Consequences of not paying claimant under payment schedule . . . . . . . . . 20
Division 2--Adjudication of disputes
21 Adjudication application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
22 When person may be an adjudicator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
23 Appointment of adjudicator. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
24 Adjudication responses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
25 Adjudication procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
26 Adjudicator's decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
27 Valuation of work etc. in later adjudication application . . . . . . . . . . . . . . . . 26
28 Adjudicator may correct clerical mistakes etc. . . . . . . . . . . . . . . . . . . . . . . . 26
29 Respondent required to pay adjudicated amount . . . . . . . . . . . . . . . . . . . . . 27
30 Consequences of not paying claimant adjudicated amount. . . . . . . . . . . . . . 27
31 Filing of adjudication certificate as judgment debt . . . . . . . . . . . . . . . . . . . . 28
32 Claimant may make new application in certain circumstances. . . . . . . . . . . 29
Division 3--Claimant's right to suspend construction work
33 Claimant may suspend work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Division 4--General
34 Authorised nominating authority's fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
35 Adjudicator's fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
PART 4--ADMINISTRATION
Division 1--Establishing registry and related matters
36 Registry established. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
37 Appointment of registrar and staff of registry . . . . . . . . . . . . . . . . . . . . . . . . 31
38 Registrar's functions and powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
39 Delegation by registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
40 Acting registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
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41 Annual report on operation of Act and registry. . . . . . . . . . . . . . . . . . . . . . . 33
Division 2--Registration of authorised nominating authorities
42 Application for registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
43 What the application must state. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
44 Consideration of application for registration. . . . . . . . . . . . . . . . . . . . . . . . . 35
45 Criteria for granting application for registration . . . . . . . . . . . . . . . . . . . . . . 35
46 Suitability of person to be registered. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
47 Inquiries into application for registration . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
48 Decision on application for registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
49 Failure to decide application for registration. . . . . . . . . . . . . . . . . . . . . . . . . 36
50 Term of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
51 Conditions of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
52 Registration required to perform functions of authorised
nominating authority ....................................... 38
53 Authorised nominating authority must ensure adjudicators are registered . . 38
54 Authorised nominating authority must comply with registration conditions 38
55 Form of certificate of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Division 3--Registration of adjudicators
56 Application for registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
57 What the application must state. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
58 Consideration of application for registration. . . . . . . . . . . . . . . . . . . . . . . . . 39
59 Criteria for granting application for registration . . . . . . . . . . . . . . . . . . . . . . 40
60 Suitability of person to be registered. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
61 Inquiries into application for registration . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
62 Decision on application for registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
63 Failure to decide application for registration. . . . . . . . . . . . . . . . . . . . . . . . . 41
64 Term of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
65 Conditions of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
66 Registration required to perform functions of adjudicator . . . . . . . . . . . . . . 42
67 Adjudicator must comply with registration conditions . . . . . . . . . . . . . . . . . 43
68 Form of certificate of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
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Division 4--Renewals of registrations of authorised nominating
authorities and adjudicators
69 Definitions for div 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
70 Applications for renewal of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
71 Inquiries into application for renewal of registration . . . . . . . . . . . . . . . . . . 44
72 Registration taken to be in force while application for renewal is
considered ............................................. 45
Division 5--Amendment of registrations of authorised nominating
authorities and adjudicators
73 Definitions for div 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
74 Application for amendment of registration . . . . . . . . . . . . . . . . . . . . . . . . . . 45
75 Inquiries into application for amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Division 6--Suspension or cancellation of registrations of authorised
nominating authorities and adjudicators
76 Definitions for div 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
77 Grounds for suspension or cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
78 Show cause notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
79 Representations about show cause notices . . . . . . . . . . . . . . . . . . . . . . . . . . 48
80 Ending show cause process without further action . . . . . . . . . . . . . . . . . . . . 48
81 Suspension or cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
82 Immediate suspension of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
83 Return of cancelled or suspended registration to registrar . . . . . . . . . . . . . . 50
84 Effect of suspension or cancellation of registration of authorised
nominating authority or adjudicator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
85 Issue of adjudication certificate by registrar . . . . . . . . . . . . . . . . . . . . . . . . . 51
Division 7--Other provisions about registrations of authorised
nominating authorities and adjudicators
86 Definitions for div 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
87 Surrender of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
88 Application for replacement of certificate of registration . . . . . . . . . . . . . . . 52
89 Decision about application for replacement of certificate of registration . . . 53
90 False or misleading statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
91 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
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PART 5--REVIEW OF DECISIONS
Division 1--Internal review of decisions
92 Review process starts with internal review . . . . . . . . . . . . . . . . . . . . . . . . . . 54
93 Application for review to be made to the registrar . . . . . . . . . . . . . . . . . . . . 54
94 Applying for review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
95 Review decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
96 Stay of operation of decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Division 2--Review by tribunal
97 Who may apply to tribunal for a review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
98 Stay of operation of decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
PART 6--MISCELLANEOUS
99 No contracting out . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
100 Effect of pt 3 on civil proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
101 Adjudicator must give copy of decision to authorised nominating authority 58
102 Authorised nominating authority must give information to registrar . . . . . . 58
103 Service of notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
104 Proof of signature unnecessary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
105 Evidentiary aids. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
106 Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
107 Protection from liability for adjudicators and authorised
nominating authorities ...................................... 59
108 Summary offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
109 Allegations of false or misleading information or document . . . . . . . . . . . . 60
110 Approved forms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
111 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
PART 7--TRANSITIONAL
112 Transitional provision for adjudication qualification . . . . . . . . . . . . . . . . . . 61
PART 8--AMENDMENT OF ACTS
113 Amendments--sch 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . 62
AMENDMENTS OF ACTS
COMMERCIAL AND CONSUMER TRIBUNAL ACT 2003. . . . . . . . . . . 62
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QUEENSLAND BUILDING SERVICES AUTHORITY ACT 1991. . . . . . 62
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . . 67
DICTIONARY
2003
A BILL
FOR
An Act to imply terms in construction contracts, to provide for
adjudication of payment disputes under construction contracts,
and for other purposes
s1 8 s3
Building and Construction Industry Payments
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The Parliament of Queensland enacts-- 1
PART 1--PRELIMINARY 2
Division 1--Introduction 3
1 Short title 4
This Act may be cited as the Building and Construction Industry 5
Payments Act 2003. 6
2 Commencement 7
This Act commences on a day to be fixed by proclamation. 8
Division 2--Application and operation of Act 9
3 Application of Act 10
(1) Subject to this section, this Act applies to construction contracts 11
entered into after the commencement of this Act-- 12
(a) whether written or oral, or partly written and partly oral; and 13
(b) whether expressed to be governed by the law of Queensland or a 14
jurisdiction other than Queensland. 15
(2) This Act does not apply to-- 16
(a) a construction contract to the extent that it forms part of a loan 17
agreement, a contract of guarantee or a contract of insurance 18
under which a recognised financial institution undertakes-- 19
(i) to lend an amount or to repay an amount lent; or 20
(ii) to guarantee payment of an amount owing or repayment of 21
an amount lent; or 22
s3 9 s3
Building and Construction Industry Payments
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(iii) to provide an indemnity relating to construction work 1
carried out, or related goods and services supplied, under 2
the construction contract; or 3
(b) a construction contract for the carrying out of domestic building 4
work if a resident owner is a party to the contract, to the extent 5
the contract relates to a building or part of a building where the 6
resident owner resides or intends to reside; or 7
(c) a construction contract under which it is agreed that the 8
consideration payable for construction work carried out under 9
the contract, or for related goods and services supplied under the 10
contract, is to be calculated other than by reference to the value 11
of the work carried out or the value of the goods and services 12
supplied. 13
(3) This Act does not apply to a construction contract to the extent it 14
contains-- 15
(a) provisions under which a party undertakes to carry out 16
construction work, or supply related goods and services in 17
relation to construction work, as an employee of the party for 18
whom the work is to be carried out or the related goods and 19
services are to be supplied; or 20
(b) provisions under which a party undertakes to carry out 21
construction work, or to supply related goods and services in 22
relation to construction work, as a condition of a loan agreement 23
with a recognised financial institution; or 24
(c) provisions under which a party undertakes-- 25
(i) to lend an amount or to repay an amount lent; or 26
(ii) to guarantee payment of an amount owing or repayment of 27
an amount lent; or 28
(iii) to provide an indemnity relating to construction work 29
carried out, or related goods and services supplied, under 30
the construction contract. 31
(4) This Act does not apply to a construction contract to the extent it 32
deals with construction work carried out outside Queensland or related 33
goods and services supplied for construction work carried out outside 34
Queensland. 35
s4 10 s4
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(5) In this section-- 1
"resident owner", in relation to a construction contract for carrying out 2
domestic building work, means a resident owner under the Domestic 3
Building Contracts Act 2000, schedule 2, but does not include a 4
person-- 5
(a) who holds, or should hold, an owner-builder permit under the 6
Queensland Building Services Authority Act 1991 relating to the 7
work; or 8
(b) who is a building contractor within the meaning of the 9
Queensland Building Services Authority Act 1991. 10
4 Effect of giving notice of claim of charge under Subcontractors' 11
Charges Act 1974 12
(1) This section applies if a person gives a notice of claim of charge 13
under the Subcontractors' Charges Act 1974 in relation to construction 14
work or related goods and services the subject of a construction contract. 15
(2) Proceedings or other action may not be started or continued by the 16
person under part 31 in relation to all or part of the construction work or 17
related goods and services. 18
(3) Without limiting subsection (2), subsection (4) applies if the person 19
has served a payment claim relating to all or part of the construction work 20
or related goods and services on a respondent before the notice of claim of 21
charge is given. 22
(4) For subsection (3)-- 23
(a) the respondent is not required to pay an amount to the person 24
under section 18(5) in relation to the claim; and 25
(b) amounts may not be recovered by the person under 26
section 19(2)(a)(i) or 20(2)(a)(i) in relation to the claim; and 27
(c) if the person made an adjudication application in relation to the 28
claim and the application has not been decided by an adjudicator 29
before the notice of the claim of charge is given, the person is 30
taken to have withdrawn the application; and 31
1 Part 3 (Procedure for recovering progress payments)
s5 11 s6
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(d) if the person made an adjudication application in relation to the 1
claim and the application has been decided by an adjudicator 2
before the notice of the claim of charge was given-- 3
(i) the respondent to the application is not required to pay the 4
adjudicated amount under section 29; and 5
(ii) an authorised nominating authority must not give the person 6
an adjudication certificate under section 30 relating to the 7
adjudication; and 8
(iii) any adjudication certificate provided in relation to the 9
adjudication can not be enforced by the person under 10
section 31 as a judgement of a court; and 11
(e) the person may not suspend, or continue to suspend, carrying out 12
all or part of the construction work or the supply of the related 13
goods and services under section 33. 14
(5) This section does not affect the operation of section 34 or 35 and an 15
adjudication application taken to have been withdrawn by the person under 16
subsection (4)(c) is taken to have been withdrawn for the purpose of 17
section 35(4). 18
(6) This section does not stop the person serving under this Act a 19
payment claim in relation to all or part of the construction work or related 20
goods and services and taking other action under this Act in relation to that 21
claim, if the notice of claim of charge in so far as it relates to the 22
construction work or related goods and services, or part, is withdrawn. 23
5 Act does not limit claimant's other rights 24
A claimant's entitlements and remedies under this Act do not limit-- 25
(a) another entitlement a claimant may have under a construction 26
contract; or 27
(b) any remedy a claimant may have for recovering the other 28
entitlement. 29
6 Act binds all persons 30
This Act binds all persons, including the State, and, so far as the 31
legislative power of the Parliament permits, the Commonwealth and the 32
other States. 33
s7 12 s 10
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Division 3--Object of Act 1
7 Object of Act 2
The object of this Act is to ensure that a person is entitled to receive, and 3
is able to recover, progress payments if the person-- 4
(a) undertakes to carry out construction work under a construction 5
contract; or 6
(b) undertakes to supply related goods and services under a 7
construction contract. 8
8 How object is to be achieved 9
The object is to be achieved by-- 10
(a) granting an entitlement to progress payments whether or not the 11
relevant contract makes provision for progress payments; and 12
(b) establishing a procedure that involves-- 13
(i) the making of a payment claim by the person claiming 14
payment; and 15
(ii) the provision of a payment schedule by the person by whom 16
the payment is payable; and 17
(iii) the referral of a disputed claim, or a claim that is not paid, to 18
an adjudicator for decision; and 19
(iv) the payment of the progress payment decided by the 20
adjudicator. 21
Division 4--Interpretation 22
9 Definitions 23
The dictionary in schedule 2 defines particular words used in this Act. 24
10 Meaning of "construction work" 25
(1) "Construction work" means any of the following work-- 26
s 10 13 s 10
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(a) the construction, alteration, repair, restoration, maintenance, 1
extension, demolition or dismantling of buildings or structures, 2
whether permanent or not, forming, or to form, part of land; 3
(b) the construction, alteration, repair, restoration, maintenance, 4
extension, demolition or dismantling of any works forming, or to 5
form, part of land, including walls, roadworks, power-lines, 6
telecommunication apparatus, aircraft runways, docks and 7
harbours, railways, inland waterways, pipelines, reservoirs, water 8
mains, wells, sewers, industrial plant and installations for land 9
drainage or coast protection; 10
(c) the installation in any building, structure or works of fittings 11
forming, or to form, part of land, including heating, lighting, 12
air-conditioning, ventilation, power supply, drainage, sanitation, 13
water supply, fire protection, security and communications 14
systems; 15
(d) the external or internal cleaning of buildings, structures and 16
works, so far as it is carried out in the course of their 17
construction, alteration, repair, restoration, maintenance or 18
extension; 19
(e) any operation which forms an integral part of, or is preparatory to 20
or is for completing, work of the kind referred to in 21
paragraph (a), (b) or (c), including-- 22
(i) site clearance, earth-moving, excavation, tunnelling and 23
boring; and 24
(ii) the laying of foundations; and 25
(iii) the erection, maintenance or dismantling of scaffolding; and 26
(iv) the prefabrication of components to form part of any 27
building, structure or works, whether carried out on-site or 28
off-site; and 29
(v) site restoration, landscaping and the provision of roadways 30
and other access works; 31
(f) the painting or decorating of the internal or external surfaces of 32
any building, structure or works; 33
(g) carrying out the testing of soils and road making materials during 34
the construction and maintenance of roads; 35
s 11 14 s 11
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Bill 2003
(h) any other work of a kind prescribed under a regulation for this 1
subsection. 2
(2) To remove doubt, it is declared that "construction work" includes 3
building work within the meaning of the Queensland Building Services 4
Authority Act 1991. 5
(3) Despite subsections (1) and (2), "construction work" does not 6
include any of the following work-- 7
(a) the drilling for, or extraction of, oil or natural gas; 8
(b) the extraction, whether by underground or surface working, of 9
minerals, including tunnelling or boring, or constructing 10
underground works, for that purpose. 11
11 Meaning of "related goods and services" 12
(1) "Related goods and services", in relation to construction work, 13
means any of the following-- 14
(a) goods of the following kind-- 15
(i) materials and components to form part of any building, 16
structure or work arising from construction work; 17
(ii) plant or materials (whether supplied by sale, hire or 18
otherwise) for use in connection with the carrying out of 19
construction work; 20
(b) services of the following kind-- 21
(i) the provision of labour to carry out construction work; 22
(ii) architectural, design, surveying or quantity surveying 23
services relating to construction work; 24
(iii) building, engineering, interior or exterior decoration or 25
landscape advisory services relating to construction work; 26
(iv) soil testing services relating to construction work; 27
(c) goods and services, in relation to construction work, of a kind 28
prescribed under a regulation for this subsection. 29
(2) In this Act, a reference to related goods and services includes a 30
reference to related goods or services. 31
s 12 15 s 14
Building and Construction Industry Payments
Bill 2003
PART 2--RIGHTS TO PROGRESS PAYMENTS 1
12 Rights to progress payments 2
From each reference date under a construction contract, a person is 3
entitled to a progress payment if the person has undertaken to carry out 4
construction work, or supply related goods and services, under the contract. 5
13 Amount of progress payment 6
The amount of a progress payment to which a person is entitled in 7
relation to a construction contract is-- 8
(a) the amount calculated under the contract; or 9
(b) if the contract does not provide for the matter, the amount 10
calculated on the basis of the value of construction work carried 11
out or undertaken to be carried out, or related goods and services 12
supplied or undertaken to be supplied, by the person, under the 13
contract. 14
14 Valuation of construction work and related goods and services 15
(1) Construction work carried out or undertaken to be carried out under a 16
construction contract is to be valued-- 17
(a) under the contract; or 18
(b) if the contract does not provide for the matter, having regard to-- 19
(i) the contract price for the work; and 20
(ii) any other rates or prices stated in the contract; and 21
(iii) any variation agreed to by the parties to the contract by 22
which the contract price, or any other rate or price stated in 23
the contract, is to be adjusted by a specific amount; and 24
(iv) if any of the work is defective, the estimated cost of 25
rectifying the defect. 26
(2) Related goods and services supplied or undertaken to be supplied 27
under a construction contract are to be valued-- 28
(a) under the terms of the contract; or 29
s 15 16 s 15
Building and Construction Industry Payments
Bill 2003
(b) if the contract does not provide for the matter, having regard to-- 1
(i) the contract price for the goods and services; and 2
(ii) any other rates or prices stated in the contract; and 3
(iii) any variation agreed to by the parties to the contract by 4
which the contract price, or any other rate or price stated in 5
the contract, is to be adjusted by a specific amount; and 6
(iv) if any of the goods are defective, the estimated cost of 7
rectifying the defect. 8
(3) For subsection (2)(b), for materials and components that are to form 9
part of any building, structure or work arising from construction work, the 10
only materials and components to be included in the valuation are those 11
that have become or, on payment, will become the property of the party or 12
other person for whom construction work is being carried out. 13
15 Due date for payment 14
(1) A progress payment under a construction contract becomes 15
payable-- 16
(a) if the contract contains a provision that is not void under 17
section 16 or under the Queensland Building Services Authority 18
Act 1991, section 67U or 67W2--on the day on which the 19
payment becomes payable under the provision; or 20
(b) if the contract does not contain a provision about the matter or 21
contains a provision that is void under section 16 or under the 22
Queensland Building Services Authority Act 1991, section 67U 23
or 67W--10 business days after a payment claim for the progress 24
payment is made under part 3. 25
(2) Subject to subsection (3), interest for a construction contract is 26
payable on the unpaid amount of a progress payment that has become 27
payable at the greater of the following rates-- 28
(a) the rate prescribed under the Supreme Court Act 1995, 29
section 48(1) for debts under a judgment or order; 30
2 Queensland Building Services Authority Act 1991, section 67U (Void payment
provision in construction management trade contract or subcontract) or 67W (Void
payment provision in commercial building contract)
s 16 17 s 16
Building and Construction Industry Payments
Bill 2003
(b) the rate specified under the contract. 1
(3) For a construction contract to which Queensland Building Services 2
Authority Act 1991, section 67P3 applies because it is a building contract, 3
interest is payable at the penalty rate under that section. 4
16 Effect of "pay when paid" provisions 5
(1) A pay when paid provision of a construction contract has no effect in 6
relation to any payment for construction work carried out or undertaken to 7
be carried out, or related goods and services supplied or undertaken to be 8
supplied, under the construction contract. 9
(2) In this section-- 10
"an amount owing", in relation to a construction contract, means an 11
amount owing for construction work carried out or undertaken to be 12
carried out, or related goods and services supplied or undertaken to be 13
supplied, under the construction contract. 14
"pay when paid provision", of a construction contract, means a provision 15
of the contract-- 16
(a) that makes the liability of one party (the "first party") to pay an 17
amount owing to another party (the "second party") contingent 18
on payment to the first party by a further party (the "third 19
party") of the whole or any part of that amount; or 20
(b) that makes the due date for payment of an amount owing by the 21
first party to the second party dependent on the date on which 22
payment of the whole or any part of that amount is made to the 23
first party by the third party; or 24
(c) that otherwise makes the liability to pay an amount owing, or the 25
due date for payment of an amount owing, contingent or 26
dependent on the operation of another contract. 27
3 Queensland Building Services Authority Act 1991, section 67P (Late progress
payments)
s 17 18 s 17
Building and Construction Industry Payments
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PART 3--PROCEDURE FOR RECOVERING PROGRESS 1
PAYMENTS 2
Division 1--Payment claims and payment schedules 3
17 Payment claims 4
(1) A person mentioned in section 12 who is or who claims to be entitled 5
to a progress payment (the "claimant") may serve a payment claim on the 6
person who, under the construction contract concerned, is or may be liable 7
to make the payment (the "respondent"). 8
(2) A payment claim-- 9
(a) must identify the construction work or related goods and services 10
to which the progress payment relates; and 11
(b) must state the amount of the progress payment that the claimant 12
claims to be payable (the "claimed amount"); and 13
(c) must state that it is made under this Act. 14
(3) The claimed amount may include any amount-- 15
(a) that the respondent is liable to pay the claimant under 16
section 33(3); or 17
(b) that is held under the construction contract by the respondent and 18
that the claimant claims is due for release. 19
(4) A payment claim may be served only within the later of-- 20
(a) the period worked out under the construction contract; or 21
(b) the period of 12 months after the construction work to which the 22
claim relates was last carried out or the related goods and 23
services to which the claim relates were last supplied. 24
(5) A claimant can not serve more than 1 payment claim in relation to 25
each reference date under the construction contract. 26
(6) However, subsection (5) does not prevent the claimant from 27
including in a payment claim an amount that has been the subject of a 28
previous claim. 29
s 18 19 s 19
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18 Payment schedules 1
(1) A respondent served with a payment claim may reply to the claim by 2
serving a payment schedule on the claimant. 3
(2) A payment schedule-- 4
(a) must identify the payment claim to which it relates; and 5
(b) must state the amount of the payment, if any, that the respondent 6
proposes to make (the "scheduled amount"). 7
(3) If the scheduled amount is less than the claimed amount, the schedule 8
must state why the scheduled amount is less and, if it is less because the 9
respondent is withholding payment for any reason, the respondent's 10
reasons for withholding payment. 11
(4) Subsection (5) applies if-- 12
(a) a claimant serves a payment claim on a respondent; and 13
(b) the respondent does not serve a payment schedule on the 14
claimant within the earlier of-- 15
(i) the time required by the relevant construction contract; or 16
(ii) 10 business days after the payment claim is served. 17
(5) The respondent becomes liable to pay the claimed amount to the 18
claimant on the due date for the progress payment to which the payment 19
claim relates. 20
19 Consequences of not paying claimant if no payment schedule 21
(1) This section applies if the respondent-- 22
(a) becomes liable to pay the claimed amount to the claimant under 23
section 18 because the respondent failed to serve a payment 24
schedule on the claimant within the time allowed by the section; 25
and 26
(b) fails to pay the whole or any part of the claimed amount on or 27
before the due date for the progress payment to which the 28
payment claim relates. 29
(2) The claimant-- 30
(a) may-- 31
s 20 20 s 20
Building and Construction Industry Payments
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(i) recover the unpaid portion of the claimed amount from the 1
respondent, as a debt owing to the claimant, in any court of 2
competent jurisdiction; or 3
(ii) make an adjudication application under section 21(1)(b) in 4
relation to the payment claim; and 5
(b) may serve notice on the respondent of the claimant's intention to 6
suspend, under section 33, carrying out construction work or 7
supplying related goods and services under the construction 8
contract. 9
(3) A notice under subsection (2)(b) must state that it is made under this 10
Act. 11
(4) If the claimant starts proceedings under subsection (2)(a)(i) to 12
recover the unpaid portion of the claimed amount from the respondent as a 13
debt-- 14
(a) judgment in favour of the claimant is not to be given by a court 15
unless the court is satisfied of the existence of the circumstances 16
referred to in subsection (1); and 17
(b) the respondent is not, in those proceedings, entitled-- 18
(i) to bring any counterclaim against the claimant; or 19
(ii) to raise any defence in relation to matters arising under the 20
construction contract. 21
20 Consequences of not paying claimant under payment schedule 22
(1) This section applies if-- 23
(a) a claimant serves a payment claim on a respondent; and 24
(b) the respondent serves a payment schedule on the claimant within 25
the earlier of-- 26
(i) the time required by the relevant construction contract; or 27
(ii) 10 business days after the payment claim is served; and 28
(c) the payment schedule states a scheduled amount that the 29
respondent proposes to pay to the claimant; and 30
s 21 21 s 21
Building and Construction Industry Payments
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(d) the respondent fails to pay the whole or any part of the scheduled 1
amount to the claimant on or before the due date for the progress 2
payment to which the payment claim relates. 3
(2) The claimant-- 4
(a) may-- 5
(i) recover the unpaid portion of the scheduled amount from 6
the respondent, as a debt owing to the claimant, in any court 7
of competent jurisdiction; or 8
(ii) make an adjudication application under section 21(1)(a)(ii) 9
in relation to the payment claim; and 10
(b) may serve notice on the respondent of the claimant's intention to 11
suspend, under section 33, carrying out construction work or 12
supplying related goods and services under the construction 13
contract. 14
(3) A notice under subsection (2)(b) must state that it is made under this 15
Act. 16
(4) If the claimant starts proceedings under subsection (2)(a)(i) to 17
recover the unpaid portion of the scheduled amount from the respondent as 18
a debt-- 19
(a) judgment in favour of the claimant is not to be given by a court 20
unless the court is satisfied of the existence of the circumstances 21
referred to in subsection (1); and 22
(b) the respondent is not, in those proceedings, entitled-- 23
(i) to bring any counterclaim against the claimant; or 24
(ii) to raise any defence in relation to matters arising under the 25
construction contract. 26
Division 2--Adjudication of disputes 27
21 Adjudication application 28
(1) A claimant may apply for adjudication of a payment claim (an 29
"adjudication application") if-- 30
(a) the respondent serves a payment schedule under division 1 but-- 31
s 21 22 s 21
Building and Construction Industry Payments
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(i) the scheduled amount stated in the payment schedule is less 1
than the claimed amount stated in the payment claim; or 2
(ii) the respondent fails to pay the whole or any part of the 3
scheduled amount to the claimant by the due date for 4
payment of the amount; or 5
(b) the respondent fails to serve a payment schedule on the claimant 6
under division 1 and fails to pay the whole or any part of the 7
claimed amount by the due date for payment of the amount. 8
(2) An adjudication application to which subsection (1)(b) applies can 9
not be made unless-- 10
(a) the claimant gives the respondent notice, within 20 business days 11
immediately following the due date for payment, of the 12
claimant's intention to apply for adjudication of the payment 13
claim; and 14
(b) the notice states that the respondent may serve a payment 15
schedule on the claimant within 5 business days after receiving 16
the claimant's notice. 17
(3) An adjudication application-- 18
(a) must be in writing; and 19
(b) must be made to an authorised nominating authority chosen by 20
the claimant; and 21
(c) must be made within the following times-- 22
(i) for an application under subsection (1)(a)(i)--within 23
10 business days after the claimant receives the payment 24
schedule; 25
(ii) for an application under subsection (1)(a)(ii)--within 26
20 business days after the due date for payment; 27
(iii) for an application under subsection (1)(b)--within 28
10 business days after the end of the 5 day period referred to 29
in subsection (2)(b); and 30
(d) must identify the payment claim and the payment schedule, if 31
any, to which it relates; and 32
(e) must be accompanied by the application fee, if any, decided by 33
the authorised nominating authority; and 34
s 22 23 s 24
Building and Construction Industry Payments
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(f) may contain the submissions relevant to the application the 1
claimant chooses to include. 2
(4) The amount of an application fee must not exceed the amount, if any, 3
prescribed under a regulation. 4
(5) A copy of an adjudication application must be served on the 5
respondent. 6
(6) The authorised nominating authority to which an adjudication 7
application is made must refer the application, as soon as practicable, to a 8
person eligible to be an adjudicator under section 22. 9
22 When person may be an adjudicator 10
(1) A person may be an adjudicator in relation to a construction contract 11
if registered as an adjudicator under this Act. 12
(2) A person is not eligible to be an adjudicator in relation to a particular 13
construction contract-- 14
(a) if the person is a party to the contract; or 15
(b) in circumstances prescribed under a regulation for this section. 16
(3) A regulation may be made under subsection (2)(b) only to prescribe 17
circumstances in which the appointment of an adjudicator might create a 18
conflict of interest. 19
23 Appointment of adjudicator 20
(1) If an authorised nominating authority refers an adjudication 21
application to an adjudicator, the adjudicator may accept the adjudication 22
application by serving notice of the acceptance on the claimant and the 23
respondent. 24
(2) On accepting an adjudication application, the adjudicator is taken to 25
have been appointed to decide the application. 26
24 Adjudication responses 27
(1) Subject to subsection (3), the respondent may give the adjudicator a 28
response to the claimant's adjudication application (the "adjudication 29
response") at any time within the later of the following to end-- 30
s 25 24 s 25
Building and Construction Industry Payments
Bill 2003
(a) 5 business days after receiving a copy of the application; 1
(b) 2 business days after receiving notice of an adjudicator's 2
acceptance of the application. 3
(2) The adjudication response-- 4
(a) must be in writing; and 5
(b) must identify the adjudication application to which it relates; and 6
(c) may contain the submissions relevant to the response the 7
respondent chooses to include. 8
(3) The respondent may give the adjudication response to the adjudicator 9
only if the respondent has served a payment schedule on the claimant 10
within the time specified in section 18(4)(b) or 21(2)(b). 11
(4) The respondent can not include in the adjudication response any 12
reasons for withholding payment unless those reasons have already been 13
included in the payment schedule served on the claimant. 14
(5) A copy of the adjudication response must be served on the claimant. 15
25 Adjudication procedures 16
(1) An adjudicator must not decide an adjudication application until after 17
the end of the period within which the respondent may give an adjudication 18
response to the adjudicator. 19
(2) An adjudicator must not consider an adjudication response unless it 20
was made before the end of the period within which the respondent may 21
give a response to the adjudicator. 22
(3) Subject to subsections (1) and (2), an adjudicator must decide an 23
adjudication application as quickly as possible and, in any case-- 24
(a) within 10 business days after the earlier of-- 25
(i) the date on which the adjudicator receives the adjudication 26
response; or 27
(ii) the date on which the adjudicator should have received the 28
adjudication response; or 29
(b) within the further time the claimant and the respondent may 30
agree, whether before or after the end of the 10 business days. 31
s 26 25 s 26
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(4) For a proceeding conducted to decide an adjudication application, an 1
adjudicator-- 2
(a) may ask for further written submissions from either party and 3
must give the other party an opportunity to comment on the 4
submissions; and 5
(b) may set deadlines for further submissions and comments by the 6
parties; and 7
(c) may call a conference of the parties; and 8
(d) may carry out an inspection of any matter to which the claim 9
relates. 10
(5) If a conference is called, it must be conducted informally and the 11
parties are not entitled to any legal representation. 12
(6) The adjudicator's power to decide an adjudication application is not 13
affected by the failure of either or both of the parties to make a submission 14
or comment within time or to comply with the adjudicator's call for a 15
conference of the parties. 16
26 Adjudicator's decision 17
(1) An adjudicator is to decide-- 18
(a) the amount of the progress payment, if any, to be paid by the 19
respondent to the claimant (the "adjudicated amount"); and 20
(b) the date on which any amount became or becomes payable; and 21
(c) the rate of interest payable on any amount. 22
(2) In deciding an adjudication application, the adjudicator is to consider 23
the following matters only-- 24
(a) the provisions of this Act and, to the extent they are relevant, the 25
provisions of the Queensland Building Services Authority Act 26
1991, part 4A;4 27
(b) the provisions of the construction contract from which the 28
application arose; 29
4 Queensland Building Services Authority Act 1991, part 4A (Building contracts other
than domestic building contracts)
s 27 26 s 28
Building and Construction Industry Payments
Bill 2003
(c) the payment claim to which the application relates, together with 1
all submissions, including relevant documentation, that have 2
been properly made by the claimant in support of the claim; 3
(d) the payment schedule, if any, to which the application relates, 4
together with all submissions, including relevant documentation, 5
that have been properly made by the respondent in support of the 6
schedule; 7
(e) the results of any inspection carried out by the adjudicator of any 8
matter to which the claim relates. 9
(3) The adjudicator's decision must-- 10
(a) be in writing; and 11
(b) include the reasons for the decision, unless the claimant and the 12
respondent have both asked the adjudicator not to include the 13
reasons in the decision. 14
27 Valuation of work etc. in later adjudication application 15
(1) Subsection (2) applies if, in deciding an adjudication application, an 16
adjudicator has, under section 14, decided-- 17
(a) the value of any construction work carried out under a 18
construction contract; or 19
(b) the value of any related goods and services supplied under a 20
construction contract. 21
(2) The adjudicator or another adjudicator must, in any later adjudication 22
application that involves the working out of the value of that work or of 23
those goods and services, give the work, or the goods and services, the 24
same value as that previously decided unless the claimant or respondent 25
satisfies the adjudicator concerned that the value of the work, or the goods 26
and services, has changed since the previous decision. 27
28 Adjudicator may correct clerical mistakes etc. 28
(1) Subsection (2) applies if the adjudicator's decision contains-- 29
(a) a clerical mistake; or 30
(b) an error arising from an accidental slip or omission; or 31
s 29 27 s 30
Building and Construction Industry Payments
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(c) a material miscalculation of figures or a material mistake in the 1
description of a person, thing or matter mentioned in the 2
decision; or 3
(d) a defect of form. 4
(2) The adjudicator may, on the adjudicator's own initiative or on the 5
application of the claimant or the respondent, correct the decision. 6
29 Respondent required to pay adjudicated amount 7
(1) If an adjudicator decides that the respondent is required to pay an 8
adjudicated amount, the respondent must pay the amount to the claimant on 9
or before the relevant date. 10
(2) In this section-- 11
"relevant date" means-- 12
(a) the date that is 5 business days after the date on which the 13
adjudicator's decision is served on the respondent; or 14
(b) if the adjudicator decides a later date under section 26(1)(b)--the 15
later date. 16
30 Consequences of not paying claimant adjudicated amount 17
(1) If the respondent fails to pay the whole or any part of the adjudicated 18
amount to the claimant under section 29, the claimant-- 19
(a) may ask the authorised nominating authority to whom the 20
adjudication application was made to provide an adjudication 21
certificate under this section; and 22
(b) may serve notice on the respondent of the claimant's intention to 23
suspend, under section 33, carrying out construction work or 24
supplying related goods and services under the construction 25
contract. 26
(2) A notice under subsection (1)(b) must state that it is made under this 27
Act. 28
(3) An adjudication certificate must state that it is made under this Act 29
and state the following matters-- 30
(a) the name of the claimant; 31
s 31 28 s 31
Building and Construction Industry Payments
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(b) the name of the respondent who is liable to pay the adjudicated 1
amount; 2
(c) the adjudicated amount; 3
(d) the date on which payment of the adjudicated amount was 4
required to be paid to the claimant. 5
(4) If an amount of interest payable on the adjudicated amount is not 6
paid by the respondent, the claimant may request the authorised 7
nominating authority to state the amount of interest payable in the 8
adjudication certificate. 9
(5) If an amount of interest is specified in the adjudication certificate, the 10
amount is to be added to, and becomes part of, the adjudicated amount. 11
(6) If the claimant has paid the respondent's share of the adjudication 12
fees for the adjudication but has not been reimbursed by the respondent for 13
that amount (the "unpaid share"), the claimant may ask the authorised 14
nominating authority to state the unpaid share in the adjudication 15
certificate. 16
(7) If the unpaid share is stated in the adjudication certificate, it is to be 17
added to, and becomes part of, the adjudicated amount. 18
31 Filing of adjudication certificate as judgment debt 19
(1) An adjudication certificate may be filed as a judgment for a debt, and 20
may be enforced, in a court of competent jurisdiction. 21
(2) An adjudication certificate can not be filed under this section unless it 22
is accompanied by an affidavit by the claimant stating that the whole or a 23
part of the adjudicated amount has not been paid at the time the certificate 24
is filed. 25
(3) If the affidavit states that part of the adjudicated amount has been 26
paid, the judgment is for the unpaid part of the amount only. 27
(4) If the respondent commences proceedings to have the judgment set 28
aside, the respondent-- 29
(a) is not, in those proceedings, entitled-- 30
(i) to bring any counterclaim against the claimant; or 31
(ii) to raise any defence in relation to matters arising under the 32
construction contract; or 33
s 32 29 s 33
Building and Construction Industry Payments
Bill 2003
(iii) to challenge the adjudicator's decision; and 1
(b) is required to pay into the court as security the unpaid portion of 2
the adjudicated amount pending the final decision in those 3
proceedings. 4
32 Claimant may make new application in certain circumstances 5
(1) This section applies if-- 6
(a) a claimant does not receive an adjudicator's notice of acceptance 7
of an adjudication application within 4 business days after the 8
application is made; or 9
(b) an adjudicator who accepts an adjudication application does not 10
decide the application within the time allowed by section 25(3). 11
(2) In either of those circumstances, the claimant-- 12
(a) may withdraw the application, by notice served on the 13
adjudicator or authorised nominating authority to whom the 14
application was made; and 15
(b) may make a new adjudication application under section 21. 16
(3) Despite section 21(3)(c), a new adjudication application may be 17
made at any time within 5 business days after the claimant becomes 18
entitled to withdraw the previous adjudication application under 19
subsection (2). 20
(4) This division applies to a new application mentioned in this section 21
in the same way as it applies to an application under section 21. 22
Division 3--Claimant's right to suspend construction work 23
33 Claimant may suspend work 24
(1) A claimant may suspend carrying out of construction work or the 25
supply of related goods and services under a construction contract if at 26
least 2 business days have passed since the claimant has given notice of 27
intention to do so to the respondent under section 19, 20 or 30. 28
(2) The right conferred by subsection (1) exists until the end of the 29
period of 3 business days immediately following the date on which the 30
s 34 30 s 35
Building and Construction Industry Payments
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claimant receives payment from the respondent of the amount mentioned in 1
section 19(1), 20(1) or 29(1). 2
(3) If the claimant, in exercising the right to suspend carrying out of 3
construction work or the supply of related goods and services under a 4
construction contract, incurs any loss or expenses as a result of the removal 5
by the respondent from the contract of any part of the work or supply, the 6
respondent is liable to pay the claimant the amount of the loss or expenses. 7
(4) A claimant who suspends carrying out construction work or the 8
supply of related goods and services under a construction contract under 9
the right conferred by subsection (1) is not liable for any loss or damage 10
suffered by the respondent, or by any person claiming through the 11
respondent, because of the claimant not carrying out that work or not 12
supplying those goods and services, during the period of suspension. 13
Division 4--General 14
34 Authorised nominating authority's fees 15
(1) An authorised nominating authority may charge a fee for any service 16
provided by the authority relating to an adjudication application made to 17
the authority. 18
(2) If an amount is prescribed under a regulation for a service provided 19
by an authorised nominating authority, the amount charged for the service 20
must not be more than the amount prescribed. 21
(3) The claimant and respondent are-- 22
(a) jointly and severally liable to pay any fee; and 23
(b) each liable to contribute to the payment of any fee in equal 24
proportions or in the proportions the adjudicator to whom the 25
adjudication application is referred may decide. 26
35 Adjudicator's fees 27
(1) An adjudicator is entitled to be paid for adjudicating an adjudication 28
application-- 29
(a) the amount, by way of fees and expenses, agreed between the 30
adjudicator and the parties to the adjudication; or 31
s 36 31 s 37
Building and Construction Industry Payments
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(b) if no amount is agreed, the amount, for fees and expenses, that is 1
reasonable having regard to the work done and expenses incurred 2
by the adjudicator. 3
(2) The claimant and respondent are jointly and severally liable to pay 4
the adjudicator's fees and expenses. 5
(3) The claimant and respondent are each liable to contribute to the 6
payment of the adjudicator's fees and expenses in equal proportions or in 7
the proportions the adjudicator decides. 8
(4) An adjudicator is not entitled to be paid any fees or expenses for the 9
adjudication of an adjudication application if the adjudicator fails to make a 10
decision on the application (other than because the application is 11
withdrawn or the dispute between the claimant and respondent is resolved) 12
within the time allowed by section 25(3). 13
(5) Subsection (4) does not apply only because an adjudicator refuses to 14
communicate the adjudicator's decision on an adjudication application 15
until the adjudicator's fees and expenses are paid. 16
PART 4--ADMINISTRATION 17
Division 1--Establishing registry and related matters 18
36 Registry established 19
(1) The Adjudication Registry (the "registry") is established. 20
(2) The registry consists of the Adjudication Registrar (the "registrar") 21
and the staff of the registry. 22
37 Appointment of registrar and staff of registry 23
(1) A person is eligible for appointment as the registrar only if the person 24
has particular knowledge and experience of-- 25
(a) public administration; and 26
(b) something else of substantial relevance to the functions of the 27
registrar. 28
s 38 32 s 39
Building and Construction Industry Payments
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(2) The registrar and other staff of the registry are to be appointed by the 1
authority under this Act. 2
38 Registrar's functions and powers 3
(1) Subject to the direction of the general manager, the registrar is 4
responsible for managing the registry and the administrative affairs of the 5
registry. 6
(2) The registrar has the following functions-- 7
(a) to keep a register, containing details of authorised nominating 8
authorities and adjudicators, which may be kept in any form 9
allowing it to be inspected as mentioned in paragraph (b); 10
(b) to ensure the register is available for inspection by an entity-- 11
(i) without charge; or 12
(ii) if a regulation prescribes a fee for the inspection, on 13
payment of the fee prescribed; 14
(c) to supply a certificate as to the correctness of a matter in the 15
register to an entity paying any fee that may be prescribed under 16
a regulation for the certificate; 17
(d) to keep records of decisions by adjudicators and to publish the 18
decisions in a way approved by the general manager; 19
(e) to keep account of fees paid or payable to the registrar; 20
(f) to collect statistical data and other information relevant to the 21
administration of the registry for the general manager's report to 22
the Minister under section 41; 23
(g) any other functions given under this Act. 24
(3) The registrar has the powers reasonably necessary to perform the 25
registrar's functions. 26
39 Delegation by registrar 27
(1) The registrar may delegate the registrar's powers under this Act or 28
another Act to an appropriately qualified member of the staff of the registry. 29
s 40 33 s 41
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(2) In this section-- 1
"appropriately qualified" includes having the qualifications, experience 2
or standing appropriate to exercise the power. 3
4
Example of standing--
5
a person's seniority level as a member of the staff of the registry
40 Acting registrar 6
(1) The authority may appoint an appropriately qualified person to act as 7
registrar. 8
(2) The appointee is to act as registrar if-- 9
(a) the registrar is not available to carry out the registrar's duties; or 10
(b) there is a vacancy in the office of registrar. 11
(3) In this section-- 12
"appropriately qualified" includes having particular knowledge and 13
experience of-- 14
(a) public administration; and 15
(b) something else of substantial relevance to the functions of the 16
registrar. 17
41 Annual report on operation of Act and registry 18
(1) As soon as practicable after each financial year, but not later than 19
30 September, the general manager must give the Minister a report 20
containing-- 21
(a) a review of the operation of this Act and the registry during the 22
preceding financial year; and 23
(b) proposals for improving the operation of, and forecasts of the 24
workload of, the registry in the present financial year. 25
(2) The Minister must table a copy of the report in the Legislative 26
Assembly within 14 sitting days after receiving the report. 27
s 42 34 s 43
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Division 2--Registration of authorised nominating authorities 1
42 Application for registration 2
(1) A person may apply to the registrar for registration as an authorised 3
nominating authority. 4
(2) The application must-- 5
(a) be in the approved form; and 6
(b) be signed by or for the applicant; and 7
(c) be accompanied by the fee prescribed under a regulation for the 8
application. 9
43 What the application must state 10
The application must state the following-- 11
(a) the name and address of the applicant; 12
(b) an address in Queensland for service of documents; 13
(c) the address of the applicant's principal place of business; 14
(d) the names of the individuals to be involved in the day to day 15
running of the applicant's business as an authorised nominating 16
authority; 17
(e) the qualifications and experience of the applicant, and 18
individuals to be involved in the day to day running of the 19
applicant's business, relevant to dealing with adjudication 20
applications; 21
(f) whether the applicant represents the interests of a particular 22
sector of the building or construction industry; 23
(g) the matters the applicant will consider in appointing adjudicators 24
to decide adjudication applications; 25
(h) the ongoing training and support the applicant will make 26
available to adjudicators; 27
(i) other details, required in the approved form for the application, to 28
enable the registrar to decide whether the applicant is a suitable 29
person to be registered as an authorised nominating authority. 30
s 44 35 s 46
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44 Consideration of application for registration 1
The registrar must consider the application and either grant, or refuse to 2
grant, the application. 3
45 Criteria for granting application for registration 4
The registrar may grant the application for registration only if the 5
registrar is satisfied the applicant is a suitable person to be registered as an 6
authorised nominating authority. 7
46 Suitability of person to be registered 8
In deciding whether an applicant is a suitable person to be registered, the 9
registrar may have regard to the following matters-- 10
(a) whether the person, or an individual engaged or employed by the 11
person, has a conviction for a relevant offence, other than a spent 12
conviction; 13
(b) whether the person, or an individual engaged or employed by the 14
person-- 15
(i) held a registration under this division, or a licence or 16
registration under a corresponding law, that was suspended 17
or cancelled; or 18
(ii) has been refused registration under this division or a licence 19
or registration under a corresponding law; 20
(c) whether the applicant represents the interests of a particular 21
sector of the building or construction industry and, if so, whether 22
this would make the applicant unsuitable to appoint adjudicators; 23
(d) the matters stated in the application for registration under 24
section 43; 25
(e) anything else relevant to the person's ability to conduct business 26
as an authorised nominating authority. 27
s 47 36 s 49
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47 Inquiries into application for registration 1
(1) Before deciding the application, the registrar-- 2
(a) may make inquiries to decide the suitability of the applicant to be 3
registered; and 4
(b) may, by notice given to the applicant, require the applicant to 5
give the registrar within the reasonable time of at least 28 days 6
stated in the notice, further information or a document the 7
registrar reasonably requires to decide the application. 8
(2) The applicant is taken to have withdrawn the application if, within 9
the stated time, the applicant does not comply with a requirement under 10
subsection (1)(b). 11
(3) A notice under subsection (1)(b) must be given to the applicant 12
within 28 days after the registrar receives the application. 13
(4) The information or document under subsection (1)(b) must, if the 14
notice requires, be verified by a statutory declaration. 15
48 Decision on application for registration 16
(1) If the registrar decides to grant the application, the registrar must 17
issue a certificate of registration to the applicant. 18
(2) If the registrar decides to impose conditions on the registration, the 19
registrar must immediately give the applicant an information notice for the 20
decision. 21
(3) If the registrar decides to refuse to grant the application, the registrar 22
must immediately give the applicant an information notice for the decision. 23
49 Failure to decide application for registration 24
(1) Subject to subsections (2) and (3), if the registrar fails to decide the 25
application within 28 days after its receipt, the failure is taken to be a 26
decision by the registrar to refuse to grant the application. 27
(2) Subsection (3) applies if-- 28
(a) a person has made an application for registration; and 29
(b) the registrar has under section 47(1)(b), required the applicant to 30
give the registrar further information or a document. 31
s 50 37 s 51
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(3) The registrar is taken to have refused to grant the application if the 1
registrar does not decide the application within 28 days after the registrar 2
receives the further information or document. 3
(4) If the application is refused under this section, the applicant is 4
entitled to be given an information notice for the decision by the registrar. 5
50 Term of registration 6
(1) A registration becomes effective on the day the certificate of 7
registration is issued or on the day of the registration's renewal and ends 8
either-- 9
(a) 3 years after that day; or 10
(b) on the earlier day stated in the certificate of registration. 11
(2) The earlier day may be decided by the registrar. 12
51 Conditions of registration 13
(1) A registration is subject to the following conditions-- 14
(a) the authorised nominating authority must comply with this Act; 15
(b) the authorised nominating authority must ensure that the 16
authority's registration, or a copy of the registration, is displayed 17
at the authority's principal place of business so that it is easily 18
visible to a person as the person enters the place; 19
(c) other reasonable conditions the registrar considers appropriate to 20
give effect to this Act and that are stated in the certificate of 21
registration or in an information notice given under 22
subsection (3). 23
(2) Conditions may be imposed under subsection (1)(c)-- 24
(a) when registration first happens or is renewed or amended; or 25
(b) at another time if the registrar considers this is necessary to 26
ensure that an authorised nominating authority effectively 27
performs the authority's functions under this Act. 28
(3) If the registrar decides to impose conditions on the authorised 29
nominating authority under subsection (2)(b)-- 30
s 52 38 s 55
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(a) the registrar must immediately give the authority an information 1
notice for the decision; and 2
(b) the conditions take effect when the information notice is received 3
by the authorised nominating authority or the later day stated in 4
the notice. 5
52 Registration required to perform functions of authorised 6
nominating authority 7
A person must not accept an adjudication application or refer it to an 8
adjudicator unless the person is an authorised nominating authority. 9
Maximum penalty--500 penalty units. 10
53 Authorised nominating authority must ensure adjudicators are 11
registered 12
An authorised nominating authority must not refer an adjudication 13
application to a person unless the person is registered as an adjudicator 14
under division 3. 15
Maximum penalty--500 penalty units. 16
54 Authorised nominating authority must comply with registration 17
conditions 18
(1) An authorised nominating authority must not contravene a condition 19
of the registration. 20
Maximum penalty--200 penalty units. 21
(2) The penalty under subsection (1) may be imposed whether or not the 22
registration is suspended or cancelled because of the contravention. 23
55 Form of certificate of registration 24
A certificate of registration must state the following particulars-- 25
(a) the authorised nominating authority's name; 26
(b) the address of the authority's principal place of business; 27
(c) the day the registration becomes effective; 28
s 56 39 s 58
Building and Construction Industry Payments
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(d) the day the registration expires; 1
(e) the registration number; 2
(f) the registration conditions. 3
Division 3--Registration of adjudicators 4
56 Application for registration 5
(1) An individual may apply to the registrar for registration as an 6
adjudicator. 7
(2) The application must-- 8
(a) be in the approved form; and 9
(b) be signed by or for the applicant; and 10
(c) be accompanied by the fee prescribed under a regulation for the 11
application. 12
57 What the application must state 13
The application must state the following-- 14
(a) the name and address of the applicant; 15
(b) an address in Queensland for service of documents; 16
(c) the experience and qualifications of the applicant, relevant to 17
deciding adjudication applications; 18
(d) other details, required in the approved form for the application, to 19
enable the registrar to decide whether the applicant is a suitable 20
person to be registered as an adjudicator. 21
58 Consideration of application for registration 22
The registrar must consider the application and either grant, or refuse to 23
grant, the application. 24
s 59 40 s 61
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59 Criteria for granting application for registration 1
The registrar may grant the application only if the registrar is satisfied 2
the applicant is a suitable person to be registered as an adjudicator. 3
60 Suitability of person to be registered 4
(1) A person is not a suitable person to be registered as an adjudicator 5
unless the person holds-- 6
(a) an adjudication qualification; or 7
(b) another qualification that the registrar considers to be equivalent 8
to an adjudication qualification. 9
(2) In deciding whether an applicant is a suitable person to be registered, 10
the registrar may have regard to the following matters-- 11
(a) whether the person has a conviction for a relevant offence, other 12
than a spent conviction; 13
(b) whether the person-- 14
(i) held a registration under this division, or a licence or 15
registration under a corresponding law, that was suspended 16
or cancelled; or 17
(ii) has been refused registration under this division or a licence 18
or registration under a corresponding law; 19
(c) the experience and qualifications of the person; 20
(d) the matters stated in the application for registration under 21
section 57; 22
(e) anything else relevant to the person's ability to carry out the 23
person's functions as an adjudicator. 24
61 Inquiries into application for registration 25
(1) Before deciding the application, the registrar-- 26
(a) may make inquiries to decide the suitability of the applicant to be 27
registered; and 28
(b) may, by notice given to the applicant, require the applicant to 29
give the registrar within the reasonable time of at least 28 days 30
s 62 41 s 63
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stated in the notice, further information or a document the 1
registrar reasonably requires to decide the application. 2
(2) The applicant is taken to have withdrawn the application if, within 3
the stated time, the applicant does not comply with a requirement under 4
subsection (1)(b). 5
(3) A notice under subsection (1)(b) must be given to the applicant 6
within 28 days after the registrar receives the application. 7
(4) The information or document under subsection (1)(b) must, if the 8
notice requires, be verified by a statutory declaration. 9
62 Decision on application for registration 10
(1) If the registrar decides to grant the application, the registrar must 11
issue a certificate of registration to the applicant. 12
(2) If the registrar decides to impose conditions on the registration, the 13
registrar must immediately give the applicant an information notice for the 14
decision. 15
(3) If the registrar decides to refuse to grant the application, the registrar 16
must immediately give the applicant an information notice for the decision. 17
63 Failure to decide application for registration 18
(1) Subject to subsections (2) and (3), if the registrar fails to decide the 19
application within 28 days after its receipt, the failure is taken to be a 20
decision by the registrar to refuse to grant the application. 21
(2) Subsection (3) applies if-- 22
(a) a person has made an application for registration; and 23
(b) the registrar has under section 61(1)(b), required the applicant to 24
give the registrar further information or a document. 25
(3) The registrar is taken to have refused to grant the application if the 26
registrar does not decide the application within 28 days after the registrar 27
receives the further information or document. 28
(4) If the application is refused under this section, the applicant is 29
entitled to be given an information notice for the decision by the registrar. 30
s 64 42 s 66
Building and Construction Industry Payments
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64 Term of registration 1
(1) A registration becomes effective on the day the certificate of 2
registration is issued or on the day of the registration's renewal and ends 3
either-- 4
(a) 3 years after that day; or 5
(b) on the earlier day stated in the certificate of registration. 6
(2) The earlier day may be decided by the registrar. 7
65 Conditions of registration 8
(1) A registration is subject to the following conditions-- 9
(a) the adjudicator must comply with this Act; 10
(b) other reasonable conditions the registrar considers appropriate to 11
give effect to this Act and that are stated in the certificate of 12
registration or in an information notice given under 13
subsection (3). 14
(2) Conditions may be imposed under subsection (1)(b)-- 15
(a) when registration first happens or is renewed or amended; or 16
(b) at another time if the registrar considers this is necessary to 17
ensure that an adjudicator effectively performs the adjudicator's 18
functions under this Act. 19
(3) If the registrar decides to impose conditions on the registration under 20
subsection (2)(b)-- 21
(a) the registrar must immediately give the adjudicator an 22
information notice for the decision; and 23
(b) the conditions take effect when the information notice is received 24
by the adjudicator or the later day stated in the notice. 25
66 Registration required to perform functions of adjudicator 26
A person must not accept or decide an adjudication application unless 27
the person is an adjudicator. 28
Maximum penalty--500 penalty units. 29
s 67 43 s 69
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67 Adjudicator must comply with registration conditions 1
(1) An adjudicator must not contravene a condition of the registration. 2
Maximum penalty--200 penalty units. 3
(2) The penalty under subsection (1) may be imposed whether or not the 4
registration is suspended or cancelled because of the contravention. 5
68 Form of certificate of registration 6
A certificate of registration must state the following particulars-- 7
(a) the registrant's name; 8
(b) the day the registration becomes effective; 9
(c) the day the registration expires; 10
(d) the registration number; 11
(e) the registration conditions. 12
Division 4--Renewals of registrations of authorised nominating 13
authorities and adjudicators 14
69 Definitions for div 4 15
In this division-- 16
"registrant" means-- 17
(a) for a person applying for a renewal of registration as an 18
authorised nominating authority, that person; or 19
(b) for a person applying for a renewal of registration as an 20
adjudicator, that person. 21
"registration" means-- 22
(a) for a renewal of registration as an authorised nominating 23
authority, that registration; or 24
(b) for a renewal of registration as an adjudicator, that registration. 25
s 70 44 s 71
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70 Applications for renewal of registration 1
(1) A registrant may apply to the registrar for the renewal of the 2
registration. 3
(2) The application must be made at least 1 month before the registration 4
ends and must-- 5
(a) be in the approved form; and 6
(b) be signed by or for the applicant; and 7
(c) be accompanied by the fee prescribed under a regulation for the 8
application. 9
(3) The registrar must consider the application and renew, or refuse to 10
renew, the registration. 11
(4) In deciding whether to grant the application, the registrar may have 12
regard to the matters to which the registrar may have regard in deciding 13
whether an applicant for registration is a suitable person to be registered. 14
(5) If the registrar decides to refuse to renew the registration, the 15
registrar must immediately give the registrant an information notice for the 16
decision. 17
(6) If the registrar decides to impose conditions on the registration, the 18
registrar must immediately give the registrant an information notice for the 19
decision. 20
(7) A registration may be renewed by-- 21
(a) endorsing the existing certificate of registration; or 22
(b) cancelling the existing certificate and issuing another certificate. 23
71 Inquiries into application for renewal of registration 24
(1) Before deciding the application, the registrar may, by notice given to 25
the registrant, require the registrant to give the registrar, within a 26
reasonable period of at least 28 days stated in the notice, further 27
information or a document the registrar reasonably requires to decide the 28
application. 29
(2) The registrant is taken to have withdrawn the application if, within 30
the stated period, the registrant does not comply with the requirement. 31
s 72 45 s 74
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72 Registration taken to be in force while application for renewal is 1
considered 2
(1) If an application is made under section 70, the registrant's 3
registration is taken to continue in force from the day that it would, apart 4
from this section, have ended until the application is decided under 5
section 70 or taken to have been withdrawn under section 71(2). 6
(2) However, if the application is refused, the registration continues in 7
force until the information notice for the decision is given to the registrant. 8
(3) Subsection (1) does not apply if the registration is earlier suspended 9
or cancelled. 10
Division 5--Amendment of registrations of authorised nominating 11
authorities and adjudicators 12
73 Definitions for div 5 13
In this division-- 14
"registrant" means-- 15
(a) for a registrant applying for amendment of a registration as an 16
authorised nominating authority, that registrant; or 17
(b) for a registrant applying for amendment of a registration as an 18
adjudicator, that registrant. 19
"registration" means-- 20
(a) for an amendment of a registration as an authorised nominating 21
authority, that registration; or 22
(b) for an amendment of a registration as an adjudicator, that 23
registration. 24
74 Application for amendment of registration 25
(1) A registrant may apply to the registrar for an amendment of the 26
registration including any conditions imposed by the registrar. 27
(2) The application must-- 28
(a) be in the approved form; and 29
s 75 46 s 76
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(b) be signed by or for the applicant; and 1
(c) be accompanied by the fee prescribed under a regulation for the 2
application. 3
(3) The registrar must consider the application and amend, or refuse to 4
amend, the registration. 5
(4) If the registrar decides to refuse to amend the registration, the 6
registrar must immediately give the registrant an information notice for the 7
decision. 8
(5) If the registrar decides to impose a condition on the amended 9
registration, the registrar must immediately give the registrant an 10
information notice for the decision. 11
(6) A registration may be amended by-- 12
(a) endorsing the existing registration with details of the 13
amendment; or 14
(b) cancelling the existing registration and issuing another 15
registration containing the amendment. 16
75 Inquiries into application for amendment 17
(1) Before deciding the application, the registrar may, by notice given to 18
the registrant, require the registrant to give the registrar, within a 19
reasonable period of at least 28 days stated in the notice, further 20
information or a document the registrar reasonably requires to decide the 21
application. 22
(2) The registrant is taken to have withdrawn the application if, within 23
the stated period, the registrant does not comply with the requirement. 24
Division 6--Suspension or cancellation of registrations of authorised 25
nominating authorities and adjudicators 26
76 Definitions for div 6 27
In this division-- 28
"registrant" means-- 29
s 77 47 s 78
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(a) for a person registered as an authorised nominating authority, 1
that person; or 2
(b) for a person registered as an adjudicator, that person. 3
"registration" means-- 4
(a) for a registration as an authorised nominating authority, that 5
registration; or 6
(b) for a registration as an adjudicator, that registration. 7
77 Grounds for suspension or cancellation 8
(1) Each of the following is a ground for suspending or cancelling a 9
registration-- 10
(a) the registrant is not, or is no longer, a suitable person to hold the 11
registration; 12
(b) the registrant has contravened a condition of the registration; 13
(c) the registration was issued because of a materially false or 14
misleading representation or declaration. 15
(2) For forming a belief that the ground mentioned in subsection (1)(a) 16
exists, the registrar may have regard to the matters to which the registrar 17
may have regard in deciding whether a proposed registrant is a suitable 18
person to hold the registration.5 19
78 Show cause notice 20
(1) This section applies if the registrar believes a ground exists to 21
suspend or cancel a registration. 22
(2) The registrar must give the registrant a notice under this section (a 23
"show cause notice"). 24
(3) The show cause notice must state-- 25
(a) the action (the "proposed action") the registrar proposes taking 26
under this division; and 27
(b) the grounds for the proposed action; and 28
5 See sections 46 and 60 (Suitability of person to be registered).
s 79 48 s 81
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(c) an outline of the facts and circumstances forming the basis for 1
the grounds; and 2
(d) if the proposed action is suspension of the registration--the 3
proposed suspension period; and 4
(e) an invitation to the registrant to show within a stated period (the 5
"show cause period") why the proposed action should not be 6
taken. 7
(4) The show cause period must be a period ending at least 21 days after 8
the show cause notice is given to the registrant. 9
79 Representations about show cause notices 10
(1) The registrant may make written representations about the show 11
cause notice to the registrar in the show cause period. 12
(2) The registrar must consider all representations (the "accepted 13
representations") made under subsection (1). 14
80 Ending show cause process without further action 15
(1) This section applies if, after considering the accepted representations 16
for the show cause notice, the registrar no longer believes a ground exists 17
to suspend or cancel the registration. 18
(2) The registrar must not take any further action about the show cause 19
notice. 20
(3) The registrar must give the registrant a notice that no further action is 21
to be taken about the show cause notice. 22
81 Suspension or cancellation 23
(1) This section applies if-- 24
(a) there are accepted representations for the show cause notice and, 25
after considering them, the registrar still believes a ground exists 26
to suspend or cancel the registration; or 27
(b) there are no accepted representations. 28
(2) If the registrar believes suspension or cancellation of the registration 29
is warranted, the registrar may-- 30
s 82 49 s 82
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(a) if the proposed action stated in the show cause notice was to 1
suspend the registration for a stated period--suspend the 2
registration for not longer than the stated period; or 3
(b) if the proposed action stated in the show cause notice was to 4
cancel the registration--either cancel the registration or suspend 5
it for a period. 6
(3) The registrar must immediately give an information notice for the 7
decision to the registrant. 8
(4) The decision takes effect on the later of the following days-- 9
(a) the day the information notice is given to the registrant; 10
(b) the day stated in the information notice for that purpose. 11
82 Immediate suspension of registration 12
(1) The registrar may suspend a registration immediately if the registrar 13
believes-- 14
(a) a ground exists to suspend or cancel the registration; and 15
(b) it is necessary to suspend the registration immediately because 16
there is an immediate and serious harm to the effectiveness of the 17
adjudication of payment claims under this Act. 18
(2) The suspension-- 19
(a) must be effected by an information notice for the decision given 20
by the registrar to the registrant to suspend the registrant's 21
registration together with a show cause notice; and 22
(b) operates immediately the notices are given; and 23
(c) continues to operate until the earliest of the following happens-- 24
(i) the registrar cancels the remaining period of the suspension; 25
(ii) the show cause notice is finally dealt with; 26
(iii) 28 days have passed since the notices were given to the 27
registrant. 28
(3) Subsection (4) applies if-- 29
(a) a suspension under this section stops because-- 30
s 83 50 s 84
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(i) the registrar cancels the remaining period of the suspension; 1
or 2
(ii) the show cause notice is finally dealt with by a decision 3
being made not to cancel or suspend the registration; or 4
(iii) 28 days have passed since the notices mentioned in 5
subsection (2)(a) were given to the registrant; and 6
(b) the registrant has returned the certificate of registration to the 7
registrar under section 83. 8
(4) The registrar must, as soon as practicable, give the certificate of 9
registration to the registrant. 10
83 Return of cancelled or suspended registration to registrar 11
(1) This section applies if the registrar has cancelled or suspended a 12
registration and given an information notice for the decision to the 13
registrant. 14
(2) The registrant must return the certificate of registration to the 15
registrar within 7 days after receiving the information notice, unless the 16
registrant has a reasonable excuse. 17
Maximum penalty for subsection (2)--20 penalty units. 18
84 Effect of suspension or cancellation of registration of authorised 19
nominating authority or adjudicator 20
(1) This section applies if-- 21
(a) the registration of an authorised nominating authority or an 22
adjudicator is suspended or cancelled or otherwise ends; and 23
(b) an adjudication application has been made to the authorised 24
nominating authority, or referred to the adjudicator, for an 25
adjudication of a payment claim; and 26
(c) an adjudicator has not made a decision under section 26 in 27
relation to the adjudication application. 28
(2) The adjudication application is taken to have been withdrawn by the 29
claimant under section 32(2)(a) and the claimant may make a new 30
adjudication application under section 21. 31
s 85 51 s 85
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(3) Despite section 21(3)(c), a new adjudication application may be 1
made at any time within 5 business days after the claimant becomes aware 2
the registration has ended. 3
(4) Part 3, division 2, applies to a new application mentioned in this 4
section in the same way as it applies to an application under section 21. 5
(5) Neither the authorised nominating authority nor the adjudicator is 6
entitled to any fees or expenses in relation to the adjudication application 7
taken to have been withdrawn. 8
85 Issue of adjudication certificate by registrar 9
(1) This section applies if-- 10
(a) an adjudication application has been made to an authorised 11
nominating authority for the adjudication of a payment claim; 12
and 13
(b) the adjudication application has been referred to an adjudicator; 14
and 15
(c) the registration of the authorised nominating authority is 16
suspended or cancelled or otherwise ends after the claim has 17
been referred to the adjudicator; and 18
(d) the adjudicator has made a decision under section 26 in relation 19
to the adjudication application. 20
(2) The registrar may provide an adjudication certificate under section 30 21
as if the registrar were the authorised nominating authority. 22
(3) The authorised nominating authority must provide the registrar with 23
the information and documents requested by the registrar to enable the 24
registrar to provide the adjudication certificate, unless the authorised 25
nominating authority has a reasonable excuse. 26
Maximum penalty--200 penalty units. 27
(4) The adjudicator must provide the registrar with the information and 28
documents requested by the registrar to enable the registrar to provide the 29
adjudication certificate, unless the adjudicator has a reasonable excuse. 30
Maximum penalty--200 penalty units. 31
s 86 52 s 88
Building and Construction Industry Payments
Bill 2003
Division 7--Other provisions about registrations of authorised 1
nominating authorities and adjudicators 2
86 Definitions for div 7 3
In this division-- 4
"registrant" means-- 5
(a) for a person registered as an authorised nominating authority, 6
that registrant; or 7
(b) for a person registered as an adjudicator, that registrant. 8
"registration" means-- 9
(a) for a registration as an authorised nominating authority, that 10
registration; or 11
(b) for a registration as an adjudicator, that registration. 12
87 Surrender of registration 13
(1) A registrant may surrender the registrant's registration by notice 14
given to the registrar. 15
(2) The registrant's certificate of registration must accompany the 16
notice. 17
(3) The surrender takes effect on the later of the following-- 18
(a) the day the notice is given; 19
(b) the day specified in the notice. 20
88 Application for replacement of certificate of registration 21
(1) A registrant may apply for replacement of the registrant's certificate 22
of registration if the certificate has been damaged, destroyed, lost or stolen. 23
(2) The application must-- 24
(a) be made to the registrar; and 25
(b) include information about the circumstances in which the 26
certificate was damaged, destroyed, lost or stolen; and 27
s 89 53 s 91
Building and Construction Industry Payments
Bill 2003
(c) be accompanied by the fee prescribed under a regulation for the 1
application. 2
89 Decision about application for replacement of certificate of 3
registration 4
(1) The registrar must consider the application and either grant, or refuse 5
to grant, the application. 6
(2) The registrar must grant the application if the registrar is satisfied the 7
certificate of registration has been destroyed, lost or stolen, or damaged in 8
a way to require its replacement. 9
(3) If the registrar decides to grant the application, the registrar must, as 10
soon as practicable, issue another certificate of registration to the applicant 11
to replace the damaged, destroyed, lost or stolen certificate. 12
(4) If the registrar decides to refuse to grant the application, the registrar 13
must immediately give the applicant an information notice for the decision. 14
90 False or misleading statements 15
A person must not, for an application made under this part, state 16
anything to the registrar the person knows is false or misleading in a 17
material particular. 18
Maximum penalty--50 penalty units. 19
91 False or misleading documents 20
(1) A person must not, for an application made under this part, give a 21
document to the registrar containing information the person knows is false 22
or misleading in a material particular. 23
Maximum penalty--50 penalty units. 24
(2) Subsection (1) does not apply to a person if the person, when giving 25
the document-- 26
(a) tells the registrar, to the best of the person's ability, how it is false 27
or misleading; and 28
(b) if the person has, or can reasonably obtain, the correct 29
information--gives the correct information to the registrar. 30
s 92 54 s 95
Building and Construction Industry Payments
Bill 2003
PART 5--REVIEW OF DECISIONS 1
Division 1--Internal review of decisions 2
92 Review process starts with internal review 3
(1) Subject to this division, a person who is given, or is entitled to be 4
given, an information notice for a decision under part 4 (the "original 5
decision") may apply for a review of the decision under this part. 6
(2) The review must be, in the first instance, by way of an application for 7
internal review under section 93. 8
93 Application for review to be made to the registrar 9
The person may apply to the registrar for a review of the original 10
decision. 11
94 Applying for review 12
(1) The application must be made within 28 days after-- 13
(a) if the person is given an information notice for the decision--the 14
day the person is given the information notice; or 15
(b) if paragraph (a) does not apply--the day the person otherwise 16
becomes aware of the decision. 17
(2) The registrar may, at any time, extend the time for applying for the 18
review. 19
(3) The application must be in writing and state fully the grounds of the 20
application. 21
95 Review decision 22
(1) After reviewing the original decision, the registrar must make a 23
further decision (the "review decision") to-- 24
(a) confirm the original decision; or 25
(b) amend the original decision; or 26
s 96 55 s 96
Building and Construction Industry Payments
Bill 2003
(c) substitute another decision for the original decision. 1
(2) The registrar must immediately give the applicant notice of the 2
review decision (the "review notice"). 3
(3) If the review decision is not the decision sought by the applicant, the 4
review notice must also state-- 5
(a) the reasons for the review decision; and 6
(b) that the applicant may apply to the tribunal for a review of the 7
review decision, within 28 days after the person is given the 8
notice; and 9
(c) how to apply to the tribunal for a review; and 10
(d) that the applicant may apply to the tribunal for a stay of the 11
review decision. 12
(4) If the registrar does not give the notice within 28 days after the 13
application is made, the registrar is taken to have made a review decision 14
confirming the original decision on the 28th day after the application is 15
made. 16
(5) If the review decision confirms the original decision, for the purpose 17
of an application to the tribunal for a review, the original decision is taken 18
to be the review decision. 19
(6) If the review decision amends the original decision, for the purpose 20
of an application to the tribunal for a review, the original decision as 21
amended is taken to be the review decision. 22
96 Stay of operation of decision 23
(1) If an application is made for a review of an original decision, the 24
applicant may immediately apply for a stay of the decision to the tribunal. 25
(2) The tribunal may stay the decision to secure the effectiveness of the 26
review and any later review by the tribunal. 27
(3) The stay-- 28
(a) may be given on conditions the tribunal considers appropriate; 29
and 30
(b) operates for the period fixed by the tribunal; and 31
(c) may be revoked or amended by the tribunal. 32
s 97 56 s 98
Building and Construction Industry Payments
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(4) The period of the stay must not extend past the time when the 1
registrar makes a review decision about the original decision and any later 2
period the tribunal allows the applicant to enable the applicant to apply to 3
the tribunal for a review of the review decision. 4
(5) The application affects the decision, or carrying out of the decision, 5
only if the decision is stayed. 6
Division 2--Review by tribunal 7
97 Who may apply to tribunal for a review 8
A person who has applied for the review of an original decision under 9
division 1 and is dissatisfied with the review decision may apply to the 10
tribunal for a review of the review decision. 11
98 Stay of operation of decision 12
(1) The tribunal may grant a stay of the operation of the review decision 13
to secure the effectiveness of the review by the tribunal. 14
(2) The stay-- 15
(a) may be given on conditions the tribunal considers appropriate; 16
and 17
(b) operates for the period fixed by the tribunal; and 18
(c) may be revoked or amended by the tribunal. 19
(3) The period of the stay must not extend past the time when the 20
tribunal completes the review. 21
(4) The review by the tribunal affects the decision, or carrying out of the 22
decision, only if the decision is stayed. 23
s 99 57 s 100
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PART 6--MISCELLANEOUS 1
99 No contracting out 2
(1) The provisions of this Act have effect despite any provision to the 3
contrary in any contract, agreement or arrangement. 4
(2) A provision of any contract, agreement or arrangement (whether in 5
writing or not) is void to the extent to which it-- 6
(a) is contrary to this Act; or 7
(b) purports to annul, exclude, modify, restrict or otherwise change 8
the effect of a provision of this Act, or would otherwise have the 9
effect of excluding, modifying, restricting or otherwise changing 10
the effect of a provision of this Act; or 11
(c) may reasonably be construed as an attempt to deter a person from 12
taking action under this Act. 13
100 Effect of pt 3 on civil proceedings 14
(1) Subject to section 99, nothing in part 3 affects any right that a party 15
to a construction contract-- 16
(a) may have under the contract; or 17
(b) may have under part 2 in relation to the contract; or 18
(c) may have apart from this Act in relation to anything done or 19
omitted to be done under the contract. 20
(2) Nothing done under or for part 3 affects any civil proceedings arising 21
under a construction contract, whether under part 3 or otherwise, except as 22
provided by subsection (3). 23
(3) In any proceedings before a court or tribunal in relation to any matter 24
arising under a construction contract, the court or tribunal-- 25
(a) must allow for any amount paid to a party to the contract under or 26
for part 3 in any order or award it makes in those proceedings; 27
and 28
(b) may make the orders it considers appropriate for the restitution 29
of any amount so paid, and any other orders it considers 30
appropriate, having regard to its decision in the proceedings. 31
s 101 58 s 105
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101 Adjudicator must give copy of decision to authorised nominating 1
authority 2
An adjudicator must, as soon as practicable, give a copy of the 3
adjudicator's decision under section 26(3) to the authorised nominating 4
authority that referred the adjudication application to the adjudicator. 5
102 Authorised nominating authority must give information to 6
registrar 7
An authorised nominating authority must, at the times specified by the 8
registrar, give the registrar-- 9
(a) a copy of the decisions given to it by adjudicators; and 10
(b) the other information required in the approved form. 11
103 Service of notices 12
(1) A notice or other document that under this Act is authorised or 13
required to be served on a person may be served on the person in the way, if 14
any, provided under the construction contract concerned. 15
(2) Subsection (1) is in addition to, and does not limit or exclude, the 16
Acts Interpretation Act 1954, section 39 or the provisions of any other law 17
about the service of notices. 18
104 Proof of signature unnecessary 19
A signature purporting to be the signature of the registrar is evidence of 20
the signature it purports to be. 21
105 Evidentiary aids 22
(1) A certificate signed by the registrar certifying anything about the 23
contents of the register is evidence of the thing stated. 24
(2) A certificate signed by the registrar stating any of the following is 25
evidence of the matters stated-- 26
(a) that a person was or was not at a time or during a period, or is or 27
is not, an authorised nominating authority; 28
s 106 59 s 107
Building and Construction Industry Payments
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(b) that an individual was or was not at a time or during a period, or 1
is or is not, an adjudicator; 2
(c) that a stated document is a record or document, a copy of a 3
record or document, or an extract from a record or document, 4
kept under this Act. 5
106 Protection from liability 6
(1) An official does not incur civil liability for an act done, or omission 7
made, honestly and without negligence under this Act. 8
(2) If subsection (1) prevents a civil liability attaching to an official, the 9
liability attaches instead to the State. 10
(3) In this section-- 11
"official" means-- 12
(a) the general manager; or 13
(b) the registrar; or 14
(c) a member of the staff of the registry. 15
107 Protection from liability for adjudicators and authorised 16
nominating authorities 17
(1) An adjudicator is not personally liable for anything done or omitted 18
to be done in good faith-- 19
(a) in performing the adjudicator's functions under this Act; or 20
(b) in the reasonable belief that the thing was done or omitted to be 21
done in the performance of the adjudicator's functions under this 22
Act. 23
(2) No action lies against an authorised nominating authority or any 24
other person for anything done or omitted to be done by the authorised 25
nominating authority in good faith-- 26
(a) in performing the nominating authority's functions under this 27
Act; or 28
(b) in the reasonable belief that the thing was done or omitted to be 29
done in the performance of the nominating authority's functions 30
under this Act. 31
s 108 60 s 111
Building and Construction Industry Payments
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108 Summary offences 1
(1) A proceeding for an offence against this Act is to be taken in a 2
summary way under the Justices Act 1886. 3
(2) The proceedings must start-- 4
(a) within 1 year after the commission of the offence; or 5
(b) within 6 months after the offence comes to the complainant's 6
knowledge, but within 2 years after the commission of the 7
offence. 8
109 Allegations of false or misleading information or document 9
In any proceeding for an offence against this Act defined as involving 10
false or misleading information, or a false or misleading document, it is 11
enough for a charge to state that the information or document was, without 12
specifying which, false or misleading. 13
110 Approved forms 14
The general manager may approve forms for use under this Act. 15
111 Regulation-making power 16
(1) The Governor in Council may make regulations under this Act. 17
(2) A regulation may-- 18
(a) provide for fees; and 19
(b) for an adjudication qualification, prescribe the following-- 20
(i) the name of the qualification; 21
(ii) the bodies that may issue the qualification; 22
(iii) the name of the adjudication competency to be achieved to 23
gain the qualification; 24
(iv) the elements that must be successfully completed to achieve 25
the competency. 26
s 112 61 s 113
Building and Construction Industry Payments
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PART 7--TRANSITIONAL 1
112 Transitional provision for adjudication qualification 2
(1) This section applies if, at the commencement, the matters mentioned 3
in section 111(2)(b) have not been prescribed for an adjudication 4
qualification. 5
(2) Section 60(1) does not apply to a person applying for registration as 6
an adjudicator if the application is received after the commencement and 7
before the prescription of the matters mentioned in subsection (1). 8
(3) If the application is granted, it is a condition of the registration that 9
the adjudicator must obtain an adjudication qualification within 3 months 10
of the prescription of the matters mentioned in subsection (1). 11
(4) In this section-- 12
"commencement" means the commencement of section 60. 13
PART 8--AMENDMENT OF ACTS 14
113 Amendments--sch 1 15
Schedule 1 amends the Acts mentioned in it. 16
62
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SCHEDULE 1 1
AMENDMENTS OF ACTS 2
section 113 3
COMMERCIAL AND CONSUMER TRIBUNAL ACT 2003 4
1 Schedule 2, definition "empowering Act"-- 5
insert-- 6
`· Building and Construction Industry Payments Act 2003'. 7
QUEENSLAND BUILDING SERVICES AUTHORITY 8
ACT 1991 9
1 Section 67AQ-- 10
insert-- 11
` "building contract" see section 67AAA.'. 12
2 Section 67AR, `67H,'-- 13
omit. 14
3 Section 67A, definitions "building contract", "progress payment" 15
and "written form"-- 16
omit. 17
63
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SCHEDULE 1 (continued)
4 Section 67A-- 1
insert-- 2
` "building contract" see section 67AAA. 3
"payment claim" see the Building and Construction Industry Payments 4
Act 2003, schedule 2. 5
"progress payment" see the Building and Construction Industry Payments 6
Act 2003, schedule 2.'. 7
5 After section 67A-- 8
insert-- 9
`67AAA Meaning of "building contract" 10
`(1) For this part, a "building contract" means a contract or other 11
arrangement for carrying out building work in Queensland but does not 12
include-- 13
(a) a domestic building contract; or 14
(b) a contract that includes construction work that is not building 15
work. 16
`(2) In this section-- 17
"construction work" see the Building and Construction Industry 18
Payments Act 2003, section 10.'. 19
6 Section 67G, "written form"-- 20
omit, insert-- 21
`writing'. 22
7 Section 67H-- 23
omit. 24
64
Building and Construction Industry Payments
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SCHEDULE 1 (continued)
8 Section 67I(5)-- 1
omit, insert-- 2
`(5) In this section-- 3
"direction" includes agreement, approval, authorisation, certificate, 4
decision, demand, determination, explanation, instruction, notice, 5
order, permission, rejection, request or requirement.'. 6
9 Section 67J-- 7
omit, insert-- 8
`67J Set-offs under building contracts 9
`(1) The contracting party for a building contract may use a security or 10
retention amount, in whole or in part, to obtain an amount owed under the 11
contract, only if the contracting party has given notice in writing to the 12
contracted party advising of the proposed use and of the amount owed. 13
`(2) The notice must be given within 28 days after the contracting party 14
becomes aware, or ought reasonably to have become aware, of the 15
contracting party's right to obtain the amount owed. 16
`(3) If, because of subsections (1) and (2), the contracting party is 17
stopped from using a security or retention amount, the contracting party for 18
the contract is not stopped from recovering the amount owed in another 19
way. 20
`(4) This section does not apply if, under the contract-- 21
(a) work has been taken out of the hands of the contracted party or 22
the contract has been terminated; or 23
(b) the security or retention amount is to be used to make a payment 24
into court to satisfy a notice of claim of charge under the 25
Subcontractors' Charges Act 1974. 26
`(5) In this section-- 27
"amount owed", under a building contract, means an amount that, under 28
the contract, is a debt due from the contracted party for the contract to 29
the contracting party for the contract because of circumstances 30
associated with the contracted party's performance of the contract. 31
65
Building and Construction Industry Payments
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SCHEDULE 1 (continued)
"use of security or retention amount" includes the act of converting 1
securities into cash where the securities are held as negotiable 2
instruments.'. 3
10 Section 67K, "written form"-- 4
omit, insert-- 5
`writing'. 6
11 Section 67Q-- 7
omit. 8
12 Section 67U-- 9
omit, insert-- 10
`67U Void payment provision in construction management trade 11
contract or subcontract 12
`A provision in a construction management trade contract or subcontract 13
is void to the extent it provides for payment of a progress payment by a 14
contracting party to a contracted party later than 25 business days after 15
submission of a payment claim.'. 16
13 Section 67W-- 17
omit, insert-- 18
`67W Void payment provision in commercial building contract 19
`A provision in a commercial building contract is void to the extent it 20
provides for payment of a progress payment by a contracting party to a 21
contracted party later than 15 business days after submission of a payment 22
claim.'. 23
66
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SCHEDULE 1 (continued)
14 Schedule 1, after part 5-- 1
insert-- 2
`PART 6--TRANSITIONAL PROVISIONS FOR THE 3
BUILDING AND CONSTRUCTION INDUSTRY 4
PAYMENTS ACT 2003 5
`27 Definitions for pt 6 6
`In this part-- 7
"former provisions" means sections 67H, 67I, 67J, 67Q, 67U and 67W, as 8
in force before the commencement. 9
"commencement" means the commencement of this part. 10
`28 Application of former provisions to existing building contracts 11
`The former provisions continue to apply to building contracts entered 12
into before the commencement as if the Building and Construction 13
Industry Payments Act, 2003, schedule 1 had not commenced.'. 14
15 Schedule 2, definition "written form"-- 15
omit. 16
16 Schedule 2-- 17
insert-- 18
` "payment claim", for part 4A, see section 67A.'. 19
67
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SCHEDULE 2 1
DICTIONARY 2
section 9 3
"accepted representations" see section 79(2). 4
"adjudicated amount" see section 26(1). 5
"adjudication application" see section 21(1). 6
"adjudication certificate" means a certificate provided by an authorised 7
nominating authority under section 30. 8
"adjudication fees" means fees or expenses charged by an authorised 9
nominating authority, or by an adjudicator, under this Act. 10
"adjudication qualification" means a certificate issued by a body 11
prescribed under a regulation to an individual stating that the 12
individual has achieved an adjudication competency standard 13
prescribed under a regulation. 14
"adjudication response" see section 24(1). 15
"adjudicator"-- 16
(a) in relation to an adjudication application--means an adjudicator 17
appointed under this Act to decide the application; and 18
(b) otherwise--means an individual registered under part 4, 19
division 3 as an adjudicator. 20
"approved form" means a form approved by the general manager under 21
section 110. 22
"authorised nominating authority" means a person registered under 23
part 4, division 2 as an authorised nominating authority. 24
"authority" means the Queensland Building Services Authority under the 25
Queensland Building Services Authority Act 1991. 26
"business day" has the meaning given in the Acts Interpretation Act 1954, 27
section 36 but does not include 27, 28, 29, 30 or 31 December. 28
68
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SCHEDULE 2 (continued)
"carry out construction work" means-- 1
(a) carry out construction work personally; or 2
(b) directly or indirectly, cause construction work to be carried out; 3
or 4
(c) provide advisory, administrative, management or supervisory 5
services for carrying out construction work. 6
"claimant" see section 17(1). 7
"claimed amount" see section 17(2). 8
"construction contract" means a contract, agreement or other 9
arrangement under which one party undertakes to carry out 10
construction work for, or to supply related goods and services to, 11
another party. 12
"construction work" see section 10. 13
"conviction" means a finding of guilt, or the acceptance of a plea of guilty, 14
by a court, whether or not a conviction is recorded. 15
"corresponding law" means a law applying, or that applied, in another 16
State, the Commonwealth or a foreign country that provides, or 17
provided, for the same matter as this Act or a provision of this Act. 18
"domestic building work" see the Domestic Building Contracts Act 2000, 19
section 8. 20
"due date", in relation to a progress payment, means the due date for the 21
progress payment, as referred to in section 15. 22
"function" includes a power. 23
"general manager" means the general manager of the authority. 24
"information notice", for a decision of the registrar under part 5, is a 25
notice stating-- 26
(a) the decision; and 27
(b) the reasons for the decision; and 28
(c) that the person to whom the notice is given may have the 29
decision reviewed within 28 days; and 30
(d) how the person may have the decision reviewed; and 31
69
Building and Construction Industry Payments
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SCHEDULE 2 (continued)
(e) if the decision is that a licence be cancelled or suspended--a 1
direction to the person to return the licence to the registrar within 2
7 days after receiving the notice. 3
"notice" means written notice. 4
"original decision" see section 92(1). 5
"payment claim" means a claim referred to in section 17. 6
"payment schedule" means a schedule referred to in section 18. 7
"perform a function" includes exercise a power. 8
"progress payment" means a payment to which a person is entitled under 9
section 12, and includes, without affecting any entitlement under the 10
section-- 11
(a) the final payment for construction work carried out, or for related 12
goods and services supplied, under a construction contract; or 13
(b) a single or one-off payment for carrying out construction work, 14
or for supplying related goods and services, under a construction 15
contract; or 16
(c) a payment that is based on an event or date, known in the 17
building and construction industry as a "milestone payment". 18
"proposed action" see section 78(3)(a). 19
"recognised financial institution" means a bank, or other financial 20
institution prescribed under a regulation. 21
"reference date", under a construction contract, means-- 22
(a) a date stated in, or worked out under, the contract as the date on 23
which a claim for a progress payment may be made for 24
construction work carried out or undertaken to be carried out, or 25
related goods and services supplied or undertaken to be supplied, 26
under the contract; or 27
(b) if the contract does not provide for the matter-- 28
(i) the last day of the named month in which the construction 29
work was first carried out, or the related goods and services 30
were first supplied, under the contract; and 31
(ii) the last day of each later named month. 32
70
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SCHEDULE 2 (continued)
"registrant" -- 1
(a) for part 4, division 4, see section 69; 2
(b) for part 4, division 5, see section 73; 3
(c) for part 4, division 6, see section 76; 4
(d) for part 4, division 7, see section 86. 5
"registrar" see section 36(2). 6
"registration" -- 7
(a) for part 4, division 4, see section 69; 8
(b) for part 4, division 5, see section 73; 9
(c) for part 4, division 6, see section 76; 10
(d) for part 4, division 7, see section 86. 11
"registry" see section 36(1). 12
"related goods and services" see section 11. 13
"relevant offence" means-- 14
(a) an indictable offence, other than an indictable offence that is 15
taken to be a simple offence under the Criminal Code, 16
section 659; or 17
(b) an offence against this Act; or 18
(c) an offence against a corresponding law; or 19
(d) an offence against the Queensland Building Services Authority 20
Act 1991 or a law of another State or the Commonwealth that 21
provides for the same matter as that Act or a provision of that 22
Act; or 23
(e) an offence against the Domestic Building Contracts Act 2000 or a 24
law of another State or the Commonwealth that provides for the 25
same matter as that Act or a provision of that Act; or 26
(f) an offence, relating to the provision of services as an authorised 27
nominating authority or an adjudicator, against a law applying, or 28
that applied, in the State, the Commonwealth, another State or a 29
foreign country. 30
71
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SCHEDULE 2 (continued)
"respondent" see section 17(1). 1
"review decision" see section 95(1). 2
"review notice" see section 95(2). 3
"scheduled amount" see section 18(2)(b). 4
"show cause notice" see section 78(2). 5
"show cause period" see section 78(3)(e). 6
"spent conviction" means a conviction-- 7
(a) for which the rehabilitation period under the Criminal Law 8
(Rehabilitation of Offenders) Act 1986 has expired under that 9
Act; and 10
(b) that is not revived as prescribed by section 11 of that Act. 11
"tribunal" means the tribunal under the Commercial and Consumer 12
Tribunal Act 2003. 13
© State of Queensland 2003
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