QUEENSLAND BUILDING SERVICES AUTHORITY ACT 1991 Reprinted as in force on 1 July 2009 Reprint No. 9A > TABLE OF PROVISIONS Contents Part 1--Preliminary 1. Short title 3. Objects of Act 4. Definitions 4A. Value of building work carried out in stages 4B. Act binds all persons 4C. Certain building contractors not bound Part 2--The Queensland Building Services Authority Division 1--Establishment of authority 5. Establishment of authority 6. Constitution of authority Division 2--Ministerial direction 7. Ministerial direction Division 3--Queensland Building Services Board 8. Establishment of board 9. Role of board 9A. Board's policies 10. Composition of board 10A. Appointment of members 11. Times and places of meetings 12. Proceedings at meetings 13. Minutes 14. Committees 15. Fees and allowances Division 4--The general manager 16. The office of general manager 17. Appointment of the general manager 18. Role of the general manager 19. Relationship between general manager and board 20. Delegation Division 5--The insurance manager 21. Appointment of insurance manager 22. Role of insurance manager Division 6--Financial provisions 25. General Statutory Fund 26. Insurance Fund 26A. Management of statutory insurance scheme 27. Authority is statutory body 28. Authority's obligation to report suspected offence Division 7--Other provisions 29. Authority may enter into work performance arrangements Part 2A--Queensland Building Services Employing Office Division 1--Establishment and functions of employing office 29A. Establishment of employing office 29B. Employing office represents the State 29C. Functions of employing office Division 2--Executive officer 29D. Appointment of executive officer 29E. Executive officer acting for employing office Division 3--Staff of employing office 29F. Employing office may employ staff 29G. Employing office may enter into work performance arrangements Division 4--Other provisions 29H. Employing office is statutory body Part 3--Licensing Division 1--Classes of licences 30. Classes of contractors' licences 30A. Nominee supervisor's licence 30B. Site supervisor's licence 30C. Fire protection occupational licence Division 2--Entitlement to licence 31. Entitlement to contractor's licence 31A. No entitlement to contractor's licence if particular partners 32. Entitlement to a nominee supervisor's licence 32AA. Entitlement to a site supervisor's licence 32AB. Entitlement to a fire protection occupational licence 32A. Exception for s 30(4) licences Division 3--Grant of licence 33. Application for licence 34. Grant of licence Division 3A--Issue of PINs to licensees 34A. PINs Division 4--Conditions of licence 35. Imposition of conditions etc. on grant of licence 36. Subsequent imposition of conditions etc. Division 5--Renewal of licences 37. When licences to be renewed 37A. Authority to advise licensee before licence due for renewal 37B. Applications for renewal of licence 37C. Renewal fee increased if directions given 38. Suspension for non-payment of fee 38A. Receipt of fee does not revive licence Division 7--Requirement to be licensed 42. Unlawful carrying out of building work 42A. Exemption from s 42 for up to 6 months 42B. Carrying out building work without a nominee 42C. Unlawful carrying out of fire protection work 42D. Licensed contractor must not engage or direct unauthorised person for fire protection work 43. Licensed contractor must ensure building work is personally supervised 43A. Licensed contractor must ensure building work is adequately supervised 43B. Construction manager must ensure building work is personally supervised 43C. Construction manager must ensure building work is adequately supervised Division 8--Owner-builders 43D. Definitions for div 8 43E. When owner-builder permit is required 44. Application for owner-builder permit 44A. Consideration of application for permit 44B. Criteria for granting application for permit 44C. When permit becomes effective 44D. Term of permit 44E. Conditions of permit 44F. Form of permit 44G. Cancellation or suspension of permit 44H. Procedure for cancellation or suspension 44I. Permit issued to more than 1 person 44J. Surrender of permit 45. Replacement of permits 46. Notification on certificate of title 47. Warnings Division 9--Cancellation, suspension or surrender of licence 48. Cancellation or suspension of licence 49. Procedure for cancellation or suspension 49A. Immediate suspension of licence 49B. Suspension or cancellation for failure to comply with tribunal's orders and directions 50. Surrender of licence Division 9A--Monitoring continued satisfaction of financial requirements and compliance with part 4A and the Domestic Building Contracts Act 2000 50A. Approved audit program 50B. Notice of proposed audit program 50C. Supply of financial records and other documents under approved audit program or for other reason Division 10--Miscellaneous 50D. Person must not pretend to be a licensee 51. Improper use of licence card, certificate, number or PIN 51A. Other offences relating to unlawful carrying out of building work 51B. Licensed contractor must not contract with unlicensed person 52. Signs to be exhibited 53. Return of licence 53A. Satisfying financial requirements at renewal 53B. False or misleading documents about financial requirements 53C. Advertising by unlicensed person 54. Advertisements 55. Notification of company's nominee 56. Partnerships 56A. Authority may request photographs for licence Part 3A--Excluded and permitted individuals and excluded companies Division 1--Preliminary 56AB. Operation of pt 3A 56AC. Excluded individuals and excluded companies Division 2--Categorisation as permitted individual 56AD. Becoming a permitted individual Division 3--Licence exclusion and cancellation 56AE. Exclusion from licence 56AF. Procedure if licensee is excluded individual 56AG. Procedure if licensee is excluded company 56AH. Review by tribunal of authority's opinion Part 3B--Permanently excluded individuals Division 1--Preliminary 57. Operation of pt 3B 58. Meaning of permanently excluded individual Division 2--Licence exclusion 59. Exclusion from licence 60. Permanently excluded individual not fit and proper 61. When individual no longer permanently excluded individual Part 3C--Convicted company officers Division 1--Preliminary 62. Operation of pt 3C Division 2--Licence exclusion and cancellation 63. Exclusion from licence 64. Procedure if authority considers individual a convicted company officer 65. Ending procedure without further action 66. Notice of cancellation and that not a fit and proper person to individual who is a licensee 67. Notice that not a fit and proper person to individual who is not a licensee 67AA. Notice by authority to company for which a convicted company officer is a director, secretary, influential person or nominee Part 3D--Banned individuals Division 1--Preliminary 67AB. Meaning of tier 1 defective work and carry out tier 1 defective work 67AC. Banned individual 67AD. Operation of pt 3D Division 2--Licence exclusion and cancellation 67AE. Exclusion from licence 67AF. Procedure if authority considers individual has carried out tier 1 defective work 67AG. Ending procedure without further action 67AH. Notice of cancellation and that not a fit and proper person to individual who is a licensee 67AI. Notice that not a fit and proper person to individual who is not a licensee 67AJ. Notice by authority to director, secretary, influential person or nominee about tier 1 defective work 67AK. Ending procedure without further action 67AL. Notice of cancellation and that not a fit and proper person to director, secretary, influential person or nominee who is a licensee 67AM. Notice that not a fit and proper person to director, secretary, influential person or nominee who is not a licensee 67AN. Notice by authority to company for which a banned individual is a director, secretary, influential person or nominee 67AO. Terms of bans 67AP. Relationship of this part with pt 7, div 4 Part 3E--Disqualified individuals Division 1--Preliminary 67AQ. Definitions for pt 3E 67AR. Meaning of demerit offence 67AS. Meaning of judgment debt 67AT. Meaning of unsatisfied judgment debt 67AU. Disqualified individual 67AV. Operation of pt 3E Division 2--Calculation of demerit points and notification of unsatisfied judgment debts 67AW. Demerit points for demerit matters 67AX. When demerit points allocated for demerit offences 67AY. When demerit points allocated for unsatisfied judgment debts 67AZ. Judgment debtor must notify unsatisfied judgment debt 67AZA. Authority must notify person about demerit points 67AZB. Limit on demerit points from single audit or investigation Division 3--Licence exclusion and cancellation 67AZC. Exclusion from licence 67AZD. Procedure if authority considers individual has accumulated 30 demerit points 67AZE. Ending procedure without further action 67AZF. Notice of cancellation and that not a fit and proper person to individual who is a licensee 67AZG. Notice that not a fit and proper person to individual who is not a licensee 67AZH. Notice by authority to director, secretary, influential person or nominee about demerit points 67AZI. Ending procedure without further action 67AZJ. Notice of cancellation and that not a fit and proper person to director, secretary, influential person or nominee who is a licensee 67AZK. Notice that not a fit and proper person to director, secretary, influential person or nominee who is not a licensee 67AZL. Notice by authority to company for which a disqualified individual is a director, secretary, influential person or nominee 67AZM. Terms of disqualifications Part 4A--Building contracts other than domestic building contracts Division 1--Preliminary 67A. Definitions for pt 4A 67AAA. Meaning of building contract 67B. Meaning of construction management trade contract 67C. Meaning of retention amount in pt 4A 67D. Meaning of subcontract in pt 4A 67E. Operation of pt 4A Division 2--All building contracts 67F. Suggested forms of contract 67G. Building contracts to be in writing 67I. Directions given under building contracts 67J. Set-offs under building contracts 67K. Limits for retention amounts and securities for building contracts other than subcontracts 67L. Limits for retention amounts and securities for subcontracts 67M. Limits on deductions for retention amounts 67N. Limits for retention amounts and securities for building contracts after practical completion 67O. Suspension of works 67P. Late progress payments Division 3--Construction management trade contracts and subcontracts 67R. Application of div 3 67S. Lodgement of security instead of retention amount or security in money form 67T. Lodgement of security to replace retention amount or security in money form 67U. Void payment provision in construction management trade contract or subcontract Division 4--Warning for construction management trade contracts 67V. Offence of not warning that contract is construction management trade contract Division 5--Commercial building contracts 67W. Void payment provision in commercial building contract Part 5--The statutory insurance scheme 67X. Statutory insurance scheme may be called Queensland Home Warranty Scheme 67Y. Protection of expressions associated with statutory insurance scheme 68. Payment of insurance premium for residential construction work 68A. Multiple contracts for the same residential construction work 68B. When insurance premium is payable by licensed contractor 68C. When insurance premium is payable by construction manager 68D. Setting of insurance premiums for residential construction work 69. Insurance of residential construction work 69A. Commencement of insurance cover 70. Insurance claims 70A. Persons not entitled to indemnity under insurance scheme 71. Recovery from building contractor etc. 71AA. Cancellation of policy of insurance Part 6--Rectification of building work 71A. Dispute resolution before rectification of building work ordered 72. Power to require rectification of building work 73. Panels of licensed contractors for rectification work 74. Tenders for rectification work Part 7--Jurisdiction of tribunal Division 1--Meaning of central terms 75. Tribunal work defined 76. What is not tribunal work Division 2--Building disputes 77. Tribunal may decide building dispute 78. When major commercial building dispute may be heard by tribunal 79. Procedure to decide whether all parties consent 80. Procedure if another party discovered 81. Consent may not be withdrawn 82. Tribunal may make interim order 83. Proceeding in tribunal stops action by authority 84. Tribunal to decide about rectification or completion work 85. Tribunal may hear dispute while contract still in operation Division 3--Proceedings for review 86. Reviewable decisions 87. Application for review Division 4--Disciplinary proceedings 88. Tribunal has jurisdiction to conduct disciplinary proceeding 89. Proper grounds for disciplinary action against a licensee 90. Proper grounds for disciplinary action against person not a licensee 91. Orders for disciplinary action Division 5--Public examinations 92. Tribunal may conduct public examination Division 6--Decisions about debts arising from statutory insurance scheme 93. Decisions about debts arising from statutory insurance scheme Division 7--Transfer of proceedings 94. Transfer of proceedings between tribunal and the courts Division 8--Expedited hearings 95. Expedited hearing of domestic building disputes 96. Certain minor commercial building disputes may be expedited 97. Judicial Review excluded for minor domestic building disputes Part 8--Registers 98. Definitions for pt 8 99. Licensee register 100. When information may be included in the licensee register 101. Licensees must advise change of circumstances 102. When notes must be removed from the licensee register 103. Register of holders of owner-builder permits 103A. When particulars must be removed from owner-builder register 103B. Developer register 103C. When notes must be removed from developer register 103D. Inspection of registers 103E. Publication of registers 103F. Certificates Part 9--Inspectors 104. Appointment of inspectors 105. Inspector to produce identity card and provide information 106. Inspector's power to require name and address 106A. Power to require production of documents 106B. Failure to produce document 106C. Failure to certify copy of document 107. Power to enter and inspect building site 107A. Obstructing inspectors 108. Obligation of assessment manager Part 10--Miscellaneous 108A. Documents that must be kept for 7 years 108B. False or misleading statement 108C. False or misleading document 108D. Contracting out prohibited 109. Access to building sites 109A. Service of documents 111. Prosecutions for offences 111A. Responsibility for acts or omissions of representatives 111B. Executive officers must ensure company complies with Act 111C. Liability of directors for amounts 112. Appropriation of penalty 113. Double jeopardy 114. Protection 115. Authority may provide services to a professional board 116. Regulations SCHEDULE 1 -- TRANSITIONAL AND VALIDATING PROVISIONS Part 1 Transitional provisions for Act N o . 98 of 1991 and amending Acts up to and including Act N o . 70 of 1997 1A. Definitions 2. Transitional provisions 4. References to repealed Acts 5. References to registrar/general manager and Home Building Advisory Service Part 2 Validating provisions for Act N o . 70 of 1997 8. Definitions 9. Validation of affected licences 10. Period of effect of transitional licences—compliance period ended 11. Period of effect of transitional licences—compliance period current 12. Condition of transitional licences Part 3--Transitional provisions for Queensland Building Services Authority Amendment Act 1999 13. Existing board goes out of office Part 4--Transitional provisions for GST and Related Matters Act 2000 14. Residential construction work for s 71 15. Building work for s 72 16. Delayed operation of definition building work, para (g) Part 5--Validating and transitional provisions for Queensland Building Services Authority and Other Legislation Amendment Act 2003 Division 1--Interpretation 17. Definition for pt 5 Division 2--Provision about financial requirements 18. Validation of provisions about financial requirements Division 3--Terms of insurance policies 19. Validation of provision about terms of insurance policy 20. Existing policies apply for amended s 69(2) Division 4--Licence classes and qualifications and experience 21. Validation of sch 2, pt 25 of the regulation etc. 22. Transitional provision for licences valid Division 5--Non-trading licences 23. Definition for div 5 24. Non-trading licence taken to be valid Division 6--Courses of instruction for owner-builders 25. Validation of provision about courses of instruction for owner- builders Division 7--Board's policies 26. Certain board's policies continue in force Part 6--Transitional provisions for the Building and Construction Industry Payments Act 2004 27. Definitions for pt 6 28. Application of former provisions to existing building contracts Part 7--Transitional provisions for Statutory Bodies Legislation Amendment Act 2007 29. Rights and entitlements of particular employees 30. Application of industrial instruments Part 8--Transitional provisions for Queensland Building Services Authority and Other Legislation Amendment Act 2007 31. Transitional provisions for existing supervisors' licences 32. Transitional qualifications for site supervisors' licences 33. Transitional provision for fire protection occupational licences 34. Transitional provision for certain fire protection work 35. Transitional provision for photograph on licence 36. Transitional provision for continuation of register of licensees SCHEDULE 2 -- DICTIONARY Endnotes - LONG TITLE An Act to regulate the building industry 1 Short title This Act may be cited as the Queensland Building Services Authority Act 1991. 3 Objects of Act The objects of this Act are-- (a) to regulate the building industry-- (i) to ensure the maintenance of proper standards in the industry; and (ii) to achieve a reasonable balance between the interests of building contractors and consumers; and (b) to provide remedies for defective building work; and (c) to provide support, education and advice for those who undertake building work and consumers. 4 Definitions The dictionary in schedule 2 defines particular words used in this Act. 4A Value of building work carried out in stages If building work is, or is to be, carried out in stages under a series of separate contracts, a reference in this Act to the value of the building work is a reference to the aggregate value of the building work carried out, or to be carried out, under those contracts. 4B Act binds all persons This Act binds all persons, including the State and, so far as the legislative power of the Parliament permits, the Commonwealth and the other States. 4C Certain building contractors not bound Parts 5 and 6 do not bind a building contractor to the extent that the business carried on by the building contractor consists of or includes-- (a) carrying out completed building inspections; or (b) contract administration carried out in relation to building work designed by the building contractor. 5 Establishment of authority (1) An authority called the Queensland Building Services Authority is established. (2) The authority-- (a) is a body corporate; and (b) has a seal; and (c) may sue and be sued in its corporate name. (3) The authority has, for or in connection with the performance of its functions, all the powers of a natural person, and may, for example-- (a) enter into contracts; and (b) acquire, hold and dispose of property; and (c) appoint agents and attorneys; and (d) engage consultants; and (e) make charges for services provided by it. 6 Constitution of authority The authority consists of-- (a) the Queensland Building Services Board; and (b) the general manager and the organisational unit under the control of the general manager. 7 Ministerial direction (1) The authority is subject to direction by the Minister, but only if the direction is given under this section. (2) If the Minister proposes to direct the authority-- (a) the direction must be given in writing; and (b) a copy of the direction must be tabled in the Legislative Assembly within 7 sitting days after it is given. (3) The authority is, on receipt of a written direction under subsection (2), bound by the direction. (4) A direction by the Minister must be published in the annual report of the authority for the year in which the direction is given. 8 Establishment of board A board called the Queensland Building Services Board is established. 9 Role of board The board has the following functions-- (a) to make and review policies governing the administration of this Act; (b) to provide guidance and leadership to the general manager and monitor the general manager's management of the authority; (c) in conjunction with the general manager, to establish the strategic direction for the authority; (d) to advise the Minister on issues affecting-- (i) the building industry; and (ii) consumers; and (iii) the administration of this Act; and (iv) the administration of the authority; (e) to give advice to the Minister about unfair or unconscionable trading practices affecting security of payments to subcontractors; (f) to consult with, and advance the interests of, the building industry and its consumers consistently with the objects of this Act. 9A Board's policies (1) To have effect, a policy of the board must be approved by regulation and published in the gazette. (2) The general manager must-- (a) keep copies of the board's policies available for inspection, without charge, at the authority's office at any time that office is open to the public; and (b) if asked, advise where copies of the board's policies may be obtained. 10 Composition of board (1) The board consists of 8 members, of whom-- (a) 3 members are to be licensees, or directors of companies that are licensees, subject to the following conditions-- (i) at least 1 of the licensees must be a licensed builder; (ii) at least 1 of the licensees must be a licensed contractor other than a licensed builder; and (b) 2 members are to be appointed as representatives of consumers; and (c) 1 member is to be appointed as a representative of either or both of the following-- (i) the general insurance industry; (ii) the accounting profession; and (d) 1 member is to be appointed as a representative of building and construction unions; and (e) 1 member is a public service officer (the public service member). (2) All members of the board, other than the public service member, are voting members. (3) The public service member's place at a meeting of the board may be filled by another public service officer chosen by the public service member. 10A Appointment of members (1) The Governor in Council is to appoint-- (a) all the members of the board; and (b) 1 of the members to be the chairperson of the board. (2) The appointment of a member is to be for a term, of not longer than 3 years, decided by the Governor in Council and stated in the member's instrument of appointment. (3) The office of a member becomes vacant if-- (a) the member resigns by signed notice of resignation given to the Minister; or (b) the member becomes a relevant officer or contractor of the authority; or (c) the member's appointment is ended by the Governor in Council under subsection (4). (4) The Governor in Council may, at any time, end the appointment of a member for any reason or without giving a reason. (5) The Governor in Council may appoint a person to act as a member of the board-- (a) when there is a vacancy in the office of a voting member; or (b) for any period, or all periods, when a voting member is absent from duty or unable for any reason to act in the office. 11 Times and places of meetings (1) Subject to subsection (2), meetings of the board are to be held at such times and places as the board determines. (2) The chairperson-- (a) may at any time convene a meeting; and (b) must convene a meeting when requested by at least 3 members of the board. 12 Proceedings at meetings (1) The chairperson or, in the absence of the chairperson, a member chosen to preside by the members present, is to preside at a meeting of the board. (2) At a meeting of the board-- (a) 4 voting members constitute a quorum; and (b) a question is to be decided by a majority of votes of the voting members present and voting; and (c) each voting member present has 1 vote on any question arising for decision and, if the votes are equal, the member presiding at the meeting has a casting vote. (3) The board may regulate its proceedings as it considers appropriate. (4) The board may permit members to participate in a particular meeting, or all meetings, by-- (a) telephone; or (b) closed circuit television; or (c) any other means of communication. (5) A member who participates in a meeting of the board by permission under subsection (4) is taken to be present at that meeting. (6) The board may invite a person to attend a meeting of the board for the purpose of advising or informing it on any matter. 13 Minutes The board must keep minutes of its proceedings. 14 Committees (1) The board, or the Minister, may appoint committees for the purpose of advising the board on a particular subject or subjects. (2) Regulations may be made governing the constitution, and regulating the proceedings, of any such committee. 15 Fees and allowances (1) The members of the board are entitled to the fees and allowances decided by the Governor in Council for their membership of the board. (2) Members of committees established under this division are entitled to the fees and allowances decided by the Governor in Council for their membership of the committees, but only if they are also members of the board. 16 The office of general manager The office of general manager of the authority is established. 17 Appointment of the general manager (1) The general manager is to be appointed by the Governor in Council. (2) The remuneration and conditions of appointment of the general manager are to be determined by the Minister. (3) The Governor in Council may appoint a person to act as general manager-- (a) during a vacancy in the office; or (b) during any period, or all periods, when the general manager is absent from duty or is, for any other reason, unable to perform the functions of the office. 18 Role of the general manager (1) The general manager has-- (a) all executive powers of the authority; and (b) responsibility for the overall management of the authority; and (c) the power to carry out any function the general manager is authorised by another Act to carry out. (1A) In carrying out a function under subsection (1)(c), the general manager may adopt the procedures of this Act unless the Act authorising the function prescribes another procedure. (2) Without limiting subsection (1), the general manager's functions and responsibilities include the following-- (a) administration of the licensing system established by this Act; (b) administration of a system of inspection; (c) issuing directions for rectification of building work under this Act; (d) taking disciplinary and other proceedings under this Act; (e) assessing and approving payment of insurance claims; (ea) undertaking strategic planning, having regard especially to cyclical industry conditions, to ensure that the authority's available revenue base, and its assets and reserves, are enough to allow the authority to maintain the services it is required to provide; (f) issuing warnings to the public or any section of the public; (g) providing and promoting consumer education; (h) providing an advisory service to consumers about-- (i) their statutory rights and obligations; and (iii) insurance claims that may arise about building work; and (iv) the authority's role, functions and operating procedures; and (v) any incidental matters; (i) providing courses of instruction for-- (i) persons seeking to obtain licences; and (ii) licensees; and (iii) persons proposing to carry out building work as owner-builders; and (iv) other persons seeking to acquire knowledge or expertise in subjects related to the building industry. (2A) In deciding the action to be taken in relation to a licensee's licence, the general manager must not have regard to the implications for the statutory insurance scheme. (3) The general manager must report regularly to the board on the administration of this Act and, at the request of the board, must provide the board with a special report on a particular subject. 19 Relationship between general manager and board (1) The general manager is independent of the board's control in performing the functions and responsibilities mentioned in section 18(2). (2) However, the general manager must give effect to the board's policies. 20 Delegation (1) The general manager may delegate powers under this Act to an appropriately qualified relevant officer of the authority. (2) In this section-- appropriately qualified includes having the qualifications, experience or standing appropriate to exercise the power. Example of standing-- a person's seniority level in an entity 21 Appointment of insurance manager (1) There is to be an insurance manager of the authority. (2) The authority must-- (a) appoint an individual to be the insurance manager; or (b) enter into a work performance arrangement under which an employee of the employing office or of another government entity holds office as the insurance manager. (3) If the authority appoints a person to be the insurance manager under subsection (2)(a), the remuneration and conditions of appointment of the insurance manager are to be decided by the authority. (4) The authority may appoint a person to act, or enter into a work performance arrangement under which an employee of the employing office or of another government entity acts, as insurance manager of the authority-- (a) when there is a vacancy in the position of insurance manager of the authority; or (b) for any period, or all periods, when the insurance manager is absent from duty or, for any other reason, can not perform the functions of the position. 22 Role of insurance manager (1) The insurance manager must report regularly to the board on the administration of the statutory insurance scheme and, if asked by the board, must give the board a special report on a particular subject. (2) The insurance manager is independent of the general manager's direction in reporting under subsection (1), but is otherwise subject to the general manager's direction. 25 General Statutory Fund (1) A fund called the General Statutory Fund is established. (2) The fund consists of-- (a) the balance of the Builders' Registration Board General Fund as at the commencement of this section; and (b) any money received or recovered by the authority except in connection with the insurance scheme; and (c) all amounts transferred from the Insurance Fund under section 26. (3) The following amounts are to be paid from the fund-- (a) costs of administering this Act, apart from the costs of administering the statutory insurance scheme; (b) amounts mentioned in subsection (4A). (4) A regulation may state a single amount that is to be transferred from the fund to the Insurance Fund. (4A) The authority must, at times decided by the authority, transfer amounts from the fund to the Insurance Fund in payment of the single amount stated in the regulation made under subsection (4). (5) The authority may apply any amount surplus to the authority's budgetary requirements for a particular financial year to encourage or assist education or research related to the building industry. 26 Insurance Fund (1) A fund called the Insurance Fund is established. (2) The fund consists of-- (a) the balance of the Builders' Registration Board Insurance Fund as at the commencement of this section; and (b) all money received or recovered by the authority in connection with the statutory insurance scheme; and (c) all amounts transferred from the General Statutory Fund under section 25. (3) The following amounts are to be paid from the fund-- (a) the costs of administering the statutory insurance scheme; (b) the costs of paying out claims under the statutory insurance scheme. (4) A regulation may require the fund to be managed-- (a) in the way prescribed under a regulation; or (b) in accordance with an external standard of fund administration prescribed under a regulation. 26A Management of statutory insurance scheme The authority must ensure that the statutory insurance scheme is managed in accordance with actuarially sustainable principles so that the amounts paid into the Insurance Fund under section 26(2) will be sufficient to satisfy the amounts to be paid from the Insurance Fund under section 26(3). 27 Authority is statutory body (1) Under the Statutory Bodies Financial Arrangements Act 1982, the authority is a statutory body. (2) The Statutory Bodies Financial Arrangements Act 1982, part 2B sets out the way in which the authority's powers under this Act are affected by the Statutory Bodies Financial Arrangements Act 1982. 28 Authority's obligation to report suspected offence If the authority has reason to suspect that an offence resulting in loss of money, or loss or damage to other property has been committed, the matter must be reported to the auditor-general and the police. 29 Authority may enter into work performance arrangements (1) The authority may enter into, and give effect to, a work performance arrangement with-- (a) the employing office; or (b) the appropriate authority of another government entity. (2) A work performance arrangement may make provision for all matters necessary or convenient to be provided under the arrangement. (3) For example, a work performance arrangement may provide for-- (a) the appointment of a person to an office, and the holding of the office by the person, for the arrangement; and (b) the authorising of a person to exercise powers for the arrangement; and (c) whether payment is to be made for work done under the arrangement and, if so, what payment is to be made and who is to make the payment. (4) A person performing work for the authority under a work performance arrangement entered into under subsection (1)-- (a) is not employed by the authority; and (b) remains an employee of the employing office, or an employee of the other government entity whose appropriate authority is a party to the arrangement. (5) To remove any doubt, it is declared that the authority does not have power to employ a person performing work for the authority under a work performance arrangement entered into under subsection (1). 29A Establishment of employing office (1) The Queensland Building Services Employing Office is established. (2) The employing office consists of-- (a) the executive officer; and (b) the employees of the employing office. (3) The employing office is a separate entity from the authority. 29B Employing office represents the State (1) The employing office represents the State. (2) Without limiting subsection (1), the employing office has the status, privileges and immunities of the State. 29C Functions of employing office (1) The main functions of the employing office are-- (a) entering into, for the State, a work performance arrangement with the authority under which employees of the employing office perform work for the authority; and (b) employing, for the State, staff to perform work for the authority under the work performance arrangement; and (c) doing anything incidental to the discharge of the functions mentioned in paragraphs (a) and (b). (2) Also, the employing office has any other function conferred on the employing office under this or another Act. (3) This section does not limit the employing office's power to enter into and give effect to a work performance arrangement under section 29G with a government entity other than the authority. 29D Appointment of executive officer (1) There is to be an executive officer of the employing office. (2) The executive officer is to be appointed by the Governor in Council. (3) The executive officer is appointed under this Act and not under the Public Service Act 1996. Editor's note-- Public Service Act 1996--now see the Public Service Act 2008, section 249(1). 29E Executive officer acting for employing office (1) The employing office acts through the executive officer. (2) Anything done by the executive officer in the name of, or for, the employing office is taken to have been done by the employing office. 29F Employing office may employ staff (1) The employing office may, for the State, employ staff. (2) A person employed under subsection (1) is an employee of the employing office. (3) The employing office may decide the terms of employment of the employees of the employing office. (4) Subsection (3) applies subject to any relevant industrial instrument. (5) Employees of the employing office are employed under this Act and not under the Public Service Act 1996. Editor's note-- Public Service Act 1996--now see the Public Service Act 2008, section 249(1). 29G Employing office may enter into work performance arrangements (1) The employing office may, for the State, enter into and give effect to a work performance arrangement with-- (a) the authority; or (b) the appropriate authority of another government entity. (2) A work performance arrangement may make provision for all matters necessary or convenient to be provided under the arrangement. (3) For example, a work performance arrangement may provide for-- (a) the appointment of a person to an office, and the holding of the office by the person, for the arrangement; and (b) the authorising of a person to exercise powers for the arrangement; and (c) whether payment is to be made for work done under the arrangement and, if so, what payment is to be made and who is to make the payment. (4) A person performing work for the authority or other government entity under a work performance arrangement entered into under subsection (1)-- (a) is not employed by the authority or other government entity; and (b) remains an employee of the employing office. (5) To remove any doubt, it is declared that the authority or another government entity does not have power to employ a person performing work for the authority or other government entity under a work performance arrangement entered into under subsection (1). 29H Employing office is statutory body (1) The employing office is a statutory body under-- (a) the Financial Accountability Act 2009; and (b) the Statutory Bodies Financial Arrangements Act 1982. (2) For applying the Financial Accountability Act 2009 to the employing office as a statutory body-- (a) the executive officer is taken to be the chairperson of the employing office; and (b) the Financial Accountability Act 2009 is taken to require the executive officer to consider the annual financial statements and the auditor-general's report as soon as practicable after they are received by the employing office; and (c) the Financial Accountability Act 2009 is taken to require the executive officer to consider any observations, suggestions or comments given to the executive officer under the Auditor-General Act 2009 as soon as practicable after the executive officer receives them. 30 Classes of contractors' licences (1) A licence (a contractor's licence) may be issued authorising the licensee-- (a) to carry out all classes of building work; or (b) to carry out building work of 1 or more classes specified in the licence. (2) Contractors' licences are to be divided into classes by regulation-- (a) according to whether the licence relates to all classes of building work or is limited to a specified class or specified classes of building work; and (b) if the licence is limited to a specified class, or specified classes, of building work--according to the class or classes of building work to which it relates. (3) A contractor's licence may be issued for any class of licence. (4) However, a regulation may specify a class of licence to be a class that may be held and renewed by a person who held that class immediately before the commencement of the regulation specifying the class but may not, after the commencement of that regulation, be applied for by, or issued to, another person. 30A Nominee supervisor's licence (1) A licence (a nominee supervisor's licence) may be issued authorising an individual-- (a) if the individual is the nominee for a licensed contractor that is a company, to-- (i) provide supervisory services for building work carried out under the company's licence; and (ii) perform the functions required of a nominee under this Act; or (b) if the individual is an officer or employee of a company, other than the company's nominee--to personally supervise building work carried out under the company's licence. (2) An individual who holds a nominee supervisor's licence and who is the employee of a licensed contractor that is an individual may personally supervise building work carried out under the contractor's licence. (3) Nominee supervisors' licences are to be divided into classes by regulation- - (a) according to whether the licence relates to all classes of building work or is limited to a specified class or specified classes of building work; and (b) if the licence is limited to a specified class, or specified classes, of building work--according to the class or classes of building work to which it relates. (4) A nominee supervisor's licence may be issued for any class of licence. 30B Site supervisor's licence (1) A licence (a site supervisor's licence) may be issued authorising an individual, while the individual is an officer or employee of a licensed contractor that is a company, to personally supervise building work carried out under the company's licence. (2) A licence (also a site supervisor's licence) may be issued authorising an individual, while the individual is an employee of a licensed contractor that is an individual, to personally supervise building work carried out under the contractor's licence. (3) Site supervisors' licences are to be divided into classes by regulation-- (a) according to whether the licence relates to all classes of building work or is limited to a specified class or specified classes of building work; and (b) if the licence is limited to a specified class, or specified classes, of building work--according to the class or classes of building work to which it relates. (4) A site supervisor's licence may be issued for any class of licence. 30C Fire protection occupational licence (1) A licence (a fire protection occupational licence) may be issued authorising an individual, while the individual is an officer or employee of a licensed contractor that is a company, to personally carry out and personally supervise fire protection work carried out under the company's licence. (2) A licence (also a fire protection occupational licence) may be issued authorising an individual, while the individual is an employee of a licensed contractor that is an individual, to personally carry out and personally supervise fire protection work carried out under the contractor's licence. (3) Fire protection occupational licences are to be divided into classes by regulation-- (a) according to whether the licence relates to all classes of fire protection work or is limited to a specified class or specified classes of fire protection work; and (b) if the licence is limited to a specified class, or specified classes, of fire protection work--according to the class or classes of fire protection work to which it relates. (4) A fire protection occupational licence may be issued for any class of licence. 31 Entitlement to contractor's licence (1) A person (not being a company) is entitled to a contractor's licence if the authority is, on application by that person, satisfied that-- (a) the applicant is a fit and proper person to hold the licence; and (b) the applicant has the qualifications and experience required by regulation in relation to a licence of the relevant class; and (c) the applicant satisfies the relevant financial requirements stated in the board's policies; and (d) the applicant can lawfully work in Queensland; and (e) the applicant is not an excluded individual for a relevant event or a permanently excluded individual; and (f) the applicant is not a disqualified individual; and (g) the applicant is not a banned individual; and (h) the applicant does not have an unpaid judgment debt for an amount the authority may recover under section 71. (2) A company is entitled to a contractor's licence if the authority is satisfied, on application by that company for a licence, that-- (a) the directors, secretary and influential persons for the company are fit and proper persons to exercise control or influence over a company that holds a contractor's licence; and (b) the company's nominee holds a licence specifically identifying, as a class of building work that the nominee may supervise, the same class of building work for which the licence is sought by the company; and (c) the applicant satisfies the relevant financial requirements stated in the board's policies; and (d) the company is not an excluded company; and (e) the company is not a company for which a banned or disqualified individual is a director, secretary, influential person or nominee; and (f) neither the company, nor a director, secretary, influential person or nominee of the company has an unpaid judgment debt for an amount the authority may recover under section 71. (3) In deciding whether a particular person is a fit and proper person to hold a contractor's licence or to exercise control or influence over a company that holds a contractor's licence, the authority may have regard to-- (a) commercial and other dealings in which that person has been involved and the standard of honesty and integrity demonstrated in those dealings; and (b) any failure by that person to carry out commercial or statutory obligations and the reasons for the failure; and (c) tier 1 defective work carried out by the person, whether or not the person received a notice under section 67AH, 67AI, 67AL or 67AM stating a term of ban for the work; and (ca) if the person is an enforcement debtor under an enforcement order for an infringement notice offence for this Act or the Domestic Building Contracts Act 2000--whether the person has taken steps under the State Penalties Enforcement Act 1999 to discharge the amount stated in the enforcement order; and (d) any other relevant factor. (4) However, the authority may not have regard to the matter mentioned in subsection (3)(ca) if-- (a) the person has applied for cancellation of the relevant enforcement order and the application for cancellation has not been finally decided; or (b) 28 days have not elapsed since the date of the enforcement order. 31A No entitlement to contractor's licence if particular partners A person (whether an individual or a company) is not entitled to a contractor's licence if the person carries on, or intends to carry on, business under the licence in partnership with another person who is-- (a) an excluded individual; or (b) a permanently excluded individual; or (c) a convicted company officer; or (d) a banned individual; or (e) a disqualified individual; or (f) an excluded company; or (g) a company for which a permanently excluded individual is a director, secretary, influential person or nominee; or (h) a company for which a convicted company officer is a director, secretary, influential person or nominee; or (i) a company for which a banned individual is a director, secretary, influential person or nominee; or (j) a company for which a disqualified individual is a director, secretary, influential person or nominee. 32 Entitlement to a nominee supervisor's licence (1) An individual is entitled to a nominee supervisor's licence if the authority is, on application by the individual, satisfied that-- (a) the applicant has the qualifications and experience required by regulation for a licence of the relevant class; and (b) the applicant can lawfully work in Queensland; and (c) the applicant is not an excluded individual for a relevant event or a permanently excluded individual; and (d) the applicant is not a banned individual; and (e) the applicant is not a disqualified individual; and (f) the applicant does not have an unpaid judgment debt for an amount the authority may recover under section 71; and (g) the applicant is a fit and proper person to hold the licence. (2) In deciding whether an applicant is a fit and proper person to hold the licence, the authority may have regard to-- (a) commercial and other dealings in which the applicant has been involved and the standard of honesty and integrity demonstrated in those dealings; and (b) any failure by the applicant to carry out commercial or statutory obligations and the reasons for the failure; and (c) tier 1 defective work carried out by the applicant, whether or not the applicant received a notice under section 67AH, 67AI, 67AL or 67AM stating a term of ban for the work; and (d) if the person is an enforcement debtor under an enforcement order for an infringement notice offence for this Act or the Domestic Building Contracts Act 2000--whether the person has taken steps under the State Penalties Enforcement Act 1999 to discharge the amount stated in the enforcement order; and (e) any other relevant factor. (3) However, the authority may not have regard to the matter mentioned in subsection (2)(d) if-- (a) the person has applied for cancellation of the relevant enforcement order and the application for cancellation has not been finally decided; or (b) 28 days have not elapsed since the date of the enforcement order. 32AA Entitlement to a site supervisor's licence (1) An individual is entitled to a site supervisor's licence if the authority is, on application by the individual, satisfied that-- (a) the applicant has the qualifications required by regulation for a licence of the relevant class; and (b) the applicant can lawfully work in Queensland; and (c) the applicant is not a banned individual; and (d) the applicant is a fit and proper person to hold the licence. (2) In deciding whether an applicant is a fit and proper person to hold the licence, the authority may have regard only to-- (a) tier 1 defective work carried out by the applicant, whether or not the applicant received a notice under section 67AH, 67AI, 67AL or 67AM stating a term of ban for the work; and (b) if the person is an enforcement debtor under an enforcement order for an infringement notice offence for this Act or the Domestic Building Contracts Act 2000--whether the person has taken steps under the State Penalties Enforcement Act 1999 to discharge the amount stated in the enforcement order. (3) However, the authority may not have regard to the matter mentioned in subsection (2)(b) if-- (a) the person has applied for cancellation of the relevant enforcement order and the application for cancellation has not been finally decided; or (b) 28 days have not elapsed since the date of the enforcement order. 32AB Entitlement to a fire protection occupational licence (1) An individual is entitled to a fire protection occupational licence if the authority is, on application by the individual, satisfied that-- (a) the applicant has the qualifications required by regulation for a licence of the relevant class; and (b) the applicant can lawfully work in Queensland; and (c) the applicant is not a banned individual; and (d) the applicant is a fit and proper person to hold a licence. (2) In deciding whether an applicant is a fit and proper person, the authority may have regard only to-- (a) tier 1 defective work carried out by the applicant, whether or not the applicant received a notice under section 67AH, 67AI, 67AL or 67AM stating a term of ban for the work; and (b) if the person is an enforcement debtor under an enforcement order for an infringement notice offence for this Act or the Domestic Building Contracts Act 2000--whether the person has taken steps under the State Penalties Enforcement Act 1999 to discharge the amount stated in the enforcement order. (3) However, the authority may not have regard to the matter mentioned in subsection (2)(b) if-- (a) the person has applied for cancellation of the relevant enforcement order and the application for cancellation has not been finally decided; or (b) 28 days have not elapsed since the date of the enforcement order. 32A Exception for s 30(4) licences This division is subject to section 30(4). 33 Application for licence (1) An application for a licence-- (a) must be made in accordance with the regulations; and (b) must be accompanied by-- (i) if the applicant is an individual, 2 recent passport- size photographs of the applicant suitable for inclusion in a licence and certified in the way prescribed by regulation; and (ii) the appropriate application fee fixed by regulation. (2) An applicant for a licence must at the request of the authority provide any further information or evidence that the authority may require to decide the application. (3) In deciding whether to give a licence, the authority may make inquiries and investigations that are reasonable and appropriate in the circumstances, including for example by-- (a) seeking confirmation about the experience of applicants through site inspections and referee checks; and (b) carrying out checks with the Australian Securities and Investment Commission, bankruptcy registers and credit bureaus. 34 Grant of licence (1) If the authority is satisfied, on an application under this division, that the applicant is entitled to a licence, the authority must issue a licence of the appropriate class. (2) A licence is to be in the form of a card and must-- (a) state the licensee's name and licence number; and (b) state the type of licence; and (c) state the class of building work the licensee is licensed to carry out; and (d) if the licensee is an individual, contain a recent photograph of the licensee; and (e) state when the licence is due for renewal. (3) The authority may also issue a licence certificate in a form determined by the authority. (4) If, on application by a licensee and payment of the fee required by regulation, the authority is satisfied that a licence card or a licence certificate has been lost, damaged or destroyed, the authority may issue a new licence card or licence certificate. 34A PINs (1) The authority may give a licensee a confidential personal identification number (a PIN) for use by the licensee in the licensee's dealings with the authority. (2) When the authority gives a PIN to a licensee, the authority must also advise the licensee of the authority's requirements for the licensee's keeping and use of the PIN. 35 Imposition of conditions etc. on grant of licence (1) A licence may be granted subject to such conditions as the authority considers appropriate. (2) Without limiting subsection (1), a licence for which an occupational licence is required is taken to be subject to the condition that the licensee hold, and continue to hold, for the term of the licence, the occupational licence. (3) Without limiting subsection (1), a contractor's licence is subject to the condition that-- (a) the licensee's financial circumstances must at all times satisfy the relevant financial requirements stated in the board's policies; and (b) variations of the contractor's turnover and assets must be notified, or notified and approved, in accordance with the relevant financial requirements stated in the board's policies. 36 Subsequent imposition of conditions etc. (1) If the authority has reason to believe-- (a) that a licensee may have insufficient financial resources to meet possible liabilities in relation to building work; or (b) that there is some other proper ground for imposing a condition on the licence; the authority may notify the licensee of the proposed condition and invite the licensee, within a period specified in the notice, to make written representations on the proposal. (2) After considering the written representations (if any) made by the licensee, the authority, if satisfied that the condition is appropriate, may, by notice to the licensee, impose the condition. (3) A condition may be imposed preventing the licensee from continuing to carry on business until the licensee has lodged with the authority appropriate security against possible liabilities in relation to building work. (3A) A condition may be imposed requiring the licensee to complete a course module included in technical or managerial national competency standards relevant to the building industry. (3B) A condition may be imposed requiring the licensee to give to the authority specified documents that relate to the licensee's obligations under part 4A or the Domestic Building Contracts Act 2000. (3C) Subsections (3), (3A) and (3B) do not limit the power to impose conditions under subsection (2). (4) The authority may, by subsequent notice to the licensee, vary or revoke a condition imposed under this section. (5) A notice imposing or varying a condition must inform the licensee of the licensee's right to apply for a review of the authority's decision to impose or vary the condition. 37 When licences to be renewed (1) A contractor's licence and a nominee supervisor's licence must be renewed 1 year after their issue or their previous renewal day. (2) A site supervisor's licence and a fire protection occupational licence must be renewed for either of the following periods after their issue or their previous renewal day-- (a) 1 year; (b) a longer period prescribed under a regulation. (3) For subsection (2), a licensee may choose whether to renew the licensee's licence for 1 year or the longer period prescribed under a regulation. 37A Authority to advise licensee before licence due for renewal (1) The authority must give notice in writing to a licensee at least 28 days before the renewal day for the licensee's licence. (2) The notice must state the following-- (a) the renewal day for the licensee's licence; (b) if the licensee is an individual, whether or not the authority requires 2 recent passport-size photographs of the licensee suitable for inclusion in a licence and certified in the way prescribed by regulation; (c) the renewal fee for the licence and that it must be paid on or before the renewal day; (d) the amount, if any, to be added to the renewal fee under section 37C; (e) for a contractor's licence, when the documentary evidence required by the financial requirements stated in the board's policies must be given to the authority. 37B Applications for renewal of licence (1) A licensee may apply to the authority for the renewal of the licensee's licence before the renewal day for the licence. (2) The application must-- (a) be made in the way prescribed under a regulation; and (b) be accompanied by the appropriate fee prescribed by regulation for the renewal plus any amount by which the renewal fee is increased under section 37C; and (c) if the authority has advised that it requires 2 recent passport- size photographs of the licensee suitable for inclusion in a licence and certified in the way prescribed by regulation--be accompanied by the photographs. (3) If requested by the authority by written notice, the licensee must, within the reasonable time stated in the notice, give the authority the further information or evidence the authority requires to decide whether the applicant continues to be entitled to hold a licence. 37C Renewal fee increased if directions given (1) This section applies if a licensee-- (a) applies for renewal of the licensee's licence; and (b) has been given a direction or directions under section 72-- (i) for a licence that has been previously renewed, since the previous renewal day; or (ii) for a licence that has not previously been renewed, since the issue of the licence. (2) The amount of the renewal fee payable by the licensee is increased by an amount equivalent to the value of a penalty unit for each direction given to the licensee. (3) However, the maximum amount by which the renewal fee may be increased at a renewal day is an amount equivalent to the value of 10 penalty units. (4) Subsection (2) does not apply if the licensee has started a proceeding in the tribunal for review of the authority's direction under section 72(15) and either-- (a) the licensee has not withdrawn the proceeding and the proceeding or any appeal from the proceeding has not been decided; or (b) the tribunal has decided that none of the items listed in the direction needed rectification. (5) Subsection (6) applies if-- (a) a licensee is given a direction or directions before the renewal day for the licensee's licence; and (b) the licensee starts a proceeding for review of the authority's direction under section 72(15); and (c) either-- (i) the licensee withdraws the proceeding after the renewal day for the licensee's licence; or (ii) the proceeding is decided after the renewal day for the licensee's licence and the decision is that 1 or more of the items listed on the direction needed rectification. (6) The amount of the next renewal fee payable by the licensee is increased by an amount equivalent to the value of a penalty unit for each direction given to the licensee. (7) Subsection (8) applies if-- (a) a direction to rectify building work is given to a licensee before the renewal day for the licensee's licence; and (b) the period for rectification stated in the direction expires after the renewal day for the licensee's licence; and (c) the licensee has not rectified the work before the renewal day for the licensee's licence. (8) For the purposes of this section, the direction is taken to have been given after the renewal day for the licensee's licence. 38 Suspension for non-payment of fee (1) If a licensee fails to pay the appropriate licence fee within the time allowed under the regulations, the authority may, by notice to the licensee, suspend the licence. (2) A suspension imposed under this section terminates on payment of the appropriate fee. (3) If a licence has remained in suspension under this section for more than 3 months, the authority may, by notice to the licensee, cancel the licence. (4) In this section-- licence fee includes any amount by which the renewal fee is increased under section 37C. 38A Receipt of fee does not revive licence (1) This section applies if, despite the cancellation or suspension of a licence under this Act, other than a suspension under section 38(1), the authority accepts the payment of an amount purporting to be the licence fee for the licence. (2) The licence does not stop being cancelled or suspended merely because of the authority's acceptance of the payment. (3) Subsection (2) applies whether or not the authority gives a receipt for the payment. 42 Unlawful carrying out of building work (1) A person must not carry out, or undertake to carry out, building work unless that person holds a contractor's licence of the appropriate class under this Act. (3) Subject to subsection (4), a person who carries out building work in contravention of this section is not entitled to any monetary or other consideration for doing so. (4) A person is not stopped under subsection (3) from claiming reasonable remuneration for carrying out building work, but only if the amount claimed-- (a) is not more than the amount paid by the person in supplying materials and labour for carrying out the building work; and (b) does not include allowance for any of the following-- (i) the supply of the person's own labour; (ii) the making of a profit by the person for carrying out the building work; (iii) costs incurred by the person in supplying materials and labour if, in the circumstances, the costs were not reasonably incurred; and (c) is not more than any amount agreed to, or purportedly agreed to, as the price for carrying out the building work; and (d) does not include any amount paid by the person that may fairly be characterised as being, in substance, an amount paid for the person's own direct or indirect benefit. (5) An unlicensed person who carries out, in the course of employment, building work for which that person's employer holds a licence of the appropriate class under this Act does not contravene this section. Note for subsection (5)-- An individual must not personally carry out fire protection work unless the individual is authorised to carry out the work under this or another Act--see section 42C. (5A) An unlicensed person who, as a subcontractor, carries out, or undertakes to carry out, building work for a licensed trade contractor, does not contravene this section if the work is within the scope of the building work allowed by the class of licence held by the contractor. Note for subsection (5A)-- An individual must not personally carry out fire protection work unless the individual is authorised to carry out the work under this or another Act--see section 42C. (6) An unlicensed person who holds an owner-builder permit does not contravene this section by carrying out building work permitted by the permit. (7) An unlicensed person who carries out, or undertakes to carry out, building work in partnership with a person who is licensed to carry out building work of the relevant class does not contravene this section. Note for subsection (7)-- An individual must not personally carry out fire protection work unless the individual is authorised to carry out the work under this or another Act--see section 42C. Also, section 56 states that a licensed contractor may carry on business under the contractor's licence in partnership with an unlicensed person subject to the conditions stated in the section. (8) An unlicensed person who carries out, or undertakes to carry out, design work does not contravene this section if-- (a) the person carries on business as a landscape architect; and (b) the person carries out the design work, or undertakes to carry it out, as part of the person's work as a landscape architect; and (c) the design work is of a type ordinarily carried out as an appropriate or necessary component of a landscape architect's work. (8A) A consumer who engages 1 or more licensed contractors to carry out building work for the consumer does not contravene this section if the consumer does not provide building work services for the work. Examples of a consumer who does not provide building work services-- a consumer who engages a licensed builder to build, and carry out all building work services for, a new residence a consumer who, as a principal, enters into construction management trade contracts for building work and engages a construction manager for building work services for the work (8B) A person who holds any of the following licences does not contravene this section only by doing something permitted under the licence-- (a) a nominee supervisor's licence; (b) a site supervisor's licence; (c) a fire protection occupational licence. (9) A person who contravenes this section commits an offence. Maximum penalty--250 penalty units. (10) Subsection (4) applies to building work carried out on or after 1 July 1992, unless the entitlement to payment for the carrying out of the building work was-- (a) before the commencement of this section, decided by-- (i) a court; or (ii) the tribunal; or (iii) an arbitrator or another entity authorised to make a binding decision about the entitlement; or (b) before 2 March 1999, the subject of-- (i) a claim or counter claim filed in a court; or (ii) an application made to the tribunal; or (iii) a reference to an arbitrator or another entity authorised to make a binding decision about the entitlement; or (c) provided for as a term of a binding agreement entered into before the commencement of this subsection, but only if the binding agreement-- (i) is between-- (A) 1 or more consumers and 1 or more building contractors; or (B) 1 or more building contractors and 1 or more other building contractors; and (ii) was entered into to resolve a dispute between some or all of the parties to the binding agreement; and (iii) is not the contract for the carrying out of the building work as originally entered into, or as originally entered into and as subsequently varied. (11) In subsection (10)-- tribunal means the Queensland Building Tribunal under this Act before the commencement of this subsection. (12) In this section-- licensed trade contractor means a licensed contractor other than the following- - (a) a licensed builder; (b) a licensed contractor who holds a contractor's licence authorising the licensee to carry out completed building inspections. 42A Exemption from s 42 for up to 6 months (1) This section applies if-- (a) on or after 1 July 2000, a class of licence (the new class of licence) is established under this Act; and (b) immediately before the establishment of the new class of licence a person (the relevant person) was carrying on a business that included carrying out work (relevant work) within the scope of work for the new class of licence; and (c) either of the following applied immediately before the establishment of the new class of licence-- (i) no relevant work was building work; (ii) some relevant work was building work, but its carrying out was incidental to the carrying out of all other relevant work. (2) The relevant person does not contravene section 42(1) in carrying out, or undertaking to carry out, relevant work unless-- (a) an application by the relevant person for the new class of licence is granted or refused; or (b) 6 months have elapsed since the new class of licence was established. 42B Carrying out building work without a nominee (1) A licensee that is a company must not carry out, or undertake to carry out, building work unless the licensee has a nominee who holds a contractor's licence or a nominee supervisor's licence for the building work carried out, or undertaken to be carried out, under the company's class of licence. Maximum penalty--250 penalty units. (2) However, a licensee does not commit an offence against subsection (1) if the period the licensee has not had a nominee is less than 28 days. 42C Unlawful carrying out of fire protection work (1) An individual must not personally carry out, or personally supervise, fire protection work unless the individual-- (a) holds a fire protection occupational licence; or (b) holds a licence, registration or authorisation under this or another Act that allows the person to personally carry out or personally supervise the work. Maximum penalty--250 penalty units. (2) Subsection (1) does not apply to an individual who personally carries out fire protection work if-- (a) the fire protection work is a type prescribed under a regulation; and (b) the individual has the technical qualifications prescribed under a regulation for the type of fire protection work; and (c) the individual carries out the fire protection work for a licensed contractor who holds a licence of the relevant class for the work. (3) Also, subsection (1) does not apply to-- (a) an apprentice who personally carries out fire protection work in a calling that requires the apprentice to carry out the work; or (b) a trainee who personally carries out fire protection work in a calling that requires the trainee to carry out the work; or (c) a student who personally carries out fire protection work as part of training under the supervision of teaching staff at-- (i) a university; or (ii) a college, school or similar institution conducted, approved or accredited by the State or the Commonwealth. 42D Licensed contractor must not engage or direct unauthorised person for fire protection work A licensed contractor must not engage or direct an employee to carry out fire protection work unless the employee is authorised to carry out the work under this or another Act. Maximum penalty--250 penalty units. 43 Licensed contractor must ensure building work is personally supervised (1) For a licensed contractor that is a company, the company and the company's nominee must each ensure that building work carried out by the contractor is personally supervised by-- (a) the company's nominee; or (b) an officer or employee of the contractor who holds 1 of the following licences of the relevant class authorising supervision of the building work-- (i) a nominee supervisor's licence; (ii) a site supervisor's licence; (iii) a fire protection occupational licence; (iv) an occupational licence; or (c) an individual who holds a contractor's licence of the relevant class. Maximum penalty-- (a) for an individual--200 penalty units; or (b) for a company--1000 penalty units. (2) For a licensed contractor that is an individual, the contractor must ensure that building work carried out by the contractor is personally supervised by-- (a) the contractor; or (b) an employee of the contractor who holds 1 of the following licences of the relevant class authorising supervision of the building work-- (i) a nominee supervisor's licence; (ii) a site supervisor's licence; (iii) a fire protection occupational licence; (iv) an occupational licence; or (c) an individual who holds a contractor's licence of the relevant class. Maximum penalty--200 penalty units. (3) In this section-- licensed contractor does not include a licensed contractor that is a construction manager. 43A Licensed contractor must ensure building work is adequately supervised (1) For a licensed contractor that is a company, the company and the company's nominee must each ensure that building work carried out by the contractor is adequately supervised. Maximum penalty-- (a) for an individual--200 penalty units; or (b) for a company--1000 penalty units. (2) For a licensed contractor that is an individual, the contractor must ensure that building work carried out by the contractor is adequately supervised. Maximum penalty--200 penalty units. (3) In deciding whether building work is adequately supervised, regard must be had to the following-- (a) whether the licensed contractor has a system for the supervision of the work and, if so, how the system has been implemented; (b) whether the building work is in accordance with the plans and specifications set out in the contract for the work; (c) whether the work is of a standard expected of a competent holder of a contractor's licence of the relevant class; (d) whether, having regard to the size and complexity of the building work, the following are sufficient-- (i) the level of control, oversight and direction exercised by a person authorised to supervise the work; (ii) the number, timing and quality of inspections carried out by a person authorised to supervise the work; (e) whether the building work is checked on its completion and before final payment by a person authorised to supervise the work. (4) In this section-- licensed contractor does not include a licensed contractor that is a construction manager. 43B Construction manager must ensure building work is personally supervised (1) This section applies if a construction manager provides building work services for a principal under a construction management contract for the carrying out of building work. (2) For a construction manager that is a company, the company and the company's nominee must each ensure that building work carried out by licensed contractors under construction management trade contracts for the principal is personally supervised by-- (a) the company's nominee; or (b) an officer or employee of the company who holds 1 of the following licences of the relevant class authorising supervision of the building work-- (i) a nominee supervisor's licence; (ii) a site supervisor's licence; (iii) a fire protection occupational licence; (iv) an occupational licence; or (c) an individual who holds a contractor's licence of the relevant class. Maximum penalty-- (a) for an individual--200 penalty units; or (b) for a company--1000 penalty units. (3) For a construction manager that is an individual, the construction manager must ensure that building work carried out by licensed contractors under construction management trade contracts for the principal is personally supervised by-- (a) the construction manager; or (b) an employee of the construction manager who holds 1 of the following licences of the relevant class authorising supervision of the building work-- (i) a nominee supervisor's licence; (ii) a site supervisor's licence; (iii) a fire protection occupational licence; (iv) an occupational licence; or (c) an individual who holds a contractor's licence of the relevant class. Maximum penalty--200 penalty units. 43C Construction manager must ensure building work is adequately supervised (1) This section applies if a construction manager provides building work services for a principal under a construction management contract for the carrying out of building work. (2) For a construction manager that is a company, the company and the company's nominee must each ensure that the building work carried out by licensed contractors under construction management trade contracts for the principal is adequately supervised. Maximum penalty-- (a) for an individual--200 penalty units; or (b) for a company--1000 penalty units. (3) For a construction manager that is an individual, the construction manager must ensure that the building work carried out by licensed contractors under construction management trade contracts for the principal is adequately supervised. Maximum penalty--200 penalty units. (4) In deciding whether building work is adequately supervised, regard must be had to the following-- (a) whether the construction manager has a system for the supervision of the work and, if so, how the system has been implemented; (b) whether the building work is in accordance with the plans and specifications set out in the contract for the work; (c) whether the work is of a standard expected of a competent holder of a contractor's licence of the relevant class; (d) whether, having regard to the size and complexity of the building work, the following are sufficient-- (i) the level of control, oversight and direction exercised by a person authorised to supervise the work; (ii) the number, timing and quality of inspections carried out by a person authorised to supervise the work; (e) whether the building work is checked on its completion and before final payment by a person authorised to supervise the work. 43D Definitions for div 8 In this division-- carry out, in relation to owner-builder work, means-- (a) carry out the work personally; or (b) do both of the following-- (i) engage 1 or more licensed contractors to carry out building work; (ii) provide building work services that would usually be carried out by a licensed contractor in the course of the contractor's business; or (c) do a combination of (a) and (b). Examples of an owner providing building work services-- directing licensed contractors how to perform building work coordinating the scheduling of building work by licensed contractors arranging for payment of subcontractors multiple dwelling means a building comprising 2 or more residential units. owner includes a person-- (a) who-- (i) holds an estate or interest in land that entitles the person to become an owner (as defined in schedule 2) of the land; or (ii) is the occupier of land under a lease, licence or other authority from the owner (as defined in schedule 2) of the land; and (b) who produces, with an application for an owner-builder permit, the written agreement of the owner (as defined in schedule 2) of the land for an owner-builder permit to be issued to the person. owner-builder course means a course prescribed by regulation. owner-builder work means building work for a building that is to be used for residential purposes carried out on the owner's land other than the following-- (a) building work for a multiple dwelling; (b) fire protection work, unless the work is carried out by a person who holds a licence to carry out the work; (c) building work for which an occupational licence is required (the occupational work), unless the work is carried out by a person who holds a licence to carry out the work. 43E When owner-builder permit is required An owner requires a permit (an owner-builder permit) to carry out owner-builder work on the owner's land. 44 Application for owner-builder permit (1) The owner of land may apply to the authority for an owner-builder permit. (2) The application must be-- (a) in writing; and (b) in the form decided by the authority; and (c) signed by-- (i) for an owner that is not a company, the owner, or if there is more than 1 owner, by all the owners; or (ii) for a company, by all the directors of the company; and (d) be accompanied by the fee prescribed by regulation. (3) The application must-- (a) state the name of the owner; and (b) if the owner is a company, state the names of the directors and the company's ACN number; and (c) state the location of the land; and (d) include a description of the work to be carried out; and (e) include other information the authority reasonably requires to decide an application. (4) The application must be accompanied by-- (a) proof of the applicant's identity; and (b) if the applicant is a company, a copy of the company's current or historical extract; and (c) proof that the applicant is the owner of the land; and (d) proof that an owner-builder course has been successfully completed by an individual who is-- (i) an applicant; or (ii) a director of a company that is an applicant. 44A Consideration of application for permit (1) The authority must consider the application and either grant, or refuse to grant, the application. (2) However, before deciding the application, the authority may, by written notice given to the applicant, require the applicant to give the authority, within a reasonable period of at least 14 days stated in the notice, further information or a document the authority reasonably considers is needed to decide the application. (3) The applicant is taken to have withdrawn the application if, within the stated period, the applicant does not comply with the requirement. (4) The authority may extend the stated period at the request of the applicant. 44B Criteria for granting application for permit (1) The authority may grant the application only if the authority is satisfied- - (a) that the applicant, or each applicant, is the owner of the land; and (b) that an applicant, or a director of a company that is an applicant, has successfully completed an owner-builder course; and (c) if the applicant, or any of the applicants, is an individual, that none of the following has been issued with a permit in the 6 years preceding the application-- (i) the applicant, or any of the applicants; (ii) a company for which an applicant who is an individual is or was a director; and (d) if the applicant, or any of the applicants, is a company, that none of the following has been issued with a permit in the 6 years preceding the application-- (i) the applicant, or any of the applicants; (ii) an individual who is or was a director of the company; and (e) if the applicant, or any of the applicants, is an individual, that none of the following has had an owner-builder permit cancelled in the 3 years preceding the application-- (i) the applicant, or any of the applicants; (ii) a company for which an applicant who is an individual is or was a director; and (f) if the applicant, or any of the applicants, is a company, that none of the following has had an owner-builder permit cancelled in the 3 years preceding the application-- (i) the applicant, or any of the applicants; (ii) an individual who is or was a director of the company; and (g) none of the applicants is a banned individual; and (h) if an applicant is a company, that none of the directors of the company is a banned individual; and (i) each applicant is a fit and proper person to hold a permit. (2) In deciding whether an applicant is a fit and proper person, the authority may have regard only to-- (a) tier 1 defective work carried out by the following persons, whether or not the person received a notice under section 67AH, 67AI, 67AL or 67AM stating a term of ban for the work-- (i) the applicant; (ii) if the applicant is a company, a director of the applicant; and (b) if the applicant, or a director of the applicant, is an enforcement debtor under an enforcement order for an infringement notice offence for this Act or the Domestic Building Contracts Act 2000--whether the applicant or director has taken steps under the State Penalties Enforcement Act 1999 to discharge the amount stated in the enforcement order. (3) However, the authority may not have regard to the matter mentioned in subsection (2)(b) if-- (a) the applicant or director has applied for cancellation of the relevant enforcement order and the application for cancellation has not been finally decided; or (b) 28 days have not elapsed since the date of the enforcement order. (4) Despite subsection (1)(c) and (d), the authority may grant an application if-- (a) a regulation prescribes exceptional circumstances in which the authority may grant an application even though a previous permit has been issued in the 6 years preceding the application; and (b) the authority considers the applicant is able to show the exceptional circumstances. 44C When permit becomes effective A permit has effect on the day stated in the permit. 44D Term of permit A permit ends 6 years after its issue or on the earlier date stated in the permit. 44E Conditions of permit A permit is subject to the following conditions-- (a) the permittee must comply with this Act; (b) the permittee may only carry out the building work as stated in the permit; (c) if the permittee engages persons to carry out building work, the persons must be licensed contractors for the work; (d) the permittee must not personally carry out building work for which an occupational licence is required; (e) the permittee must not personally carry out fire protection work if the value of the work is more than the amount prescribed by regulation, or if no amount is prescribed, more than $1100; (f) other reasonable conditions-- (i) the authority considers appropriate to give effect to this Act; and (ii) stated in the permit. 44F Form of permit A permit is to be in the form decided by the authority and must state the following particulars-- (a) the permittee's name; (b) the location of the land on which the owner-builder work is to be carried out; (c) the real property description of the land; (d) a description of the owner-builder work to be carried out on the land; (e) the date of issue of the permit; (f) the term of the permit; (g) the permit number; (h) the conditions of the permit. 44G Cancellation or suspension of permit The authority may suspend or cancel a permit if-- (a) the permit was obtained on the basis of incorrect information supplied to the authority, whether or not fraud was intended; or (b) the permit was obtained by fraud or other improper means; or (c) the permittee carries out tier 1 defective work on the land the subject of the permit; or (d) the permittee contravenes a condition to which the permit is subject; or (e) the authority becomes aware of the existence of facts that would have allowed the authority to refuse to issue the permit originally. 44H Procedure for cancellation or suspension (1) The authority must, before cancelling or suspending a permit, give the permittee notice of its reasons for the proposed cancellation or suspension and allow the permittee 21 days from service of the notice to make written representations on the matter. (2) The authority must consider any written representations made within the time allowed under subsection (1) before imposing the cancellation or suspension. (3) A cancellation or suspension is imposed by written notice to the permittee. (4) The notice of cancellation or suspension must inform the permittee or former permittee of the right to apply to the tribunal for a review of the authority's decision. 44I Permit issued to more than 1 person If a permit is issued jointly to more than 1 person, a reference in this part to the permittee is a reference to each of the persons. 44J Surrender of permit (1) A permittee may surrender the permit by written notice given to the authority. (2) The permit must accompany the notice. (3) The surrender takes effect on the later of the following-- (a) the day the notice is given; (b) the day specified in the notice. 45 Replacement of permits (1) A permittee may apply to the authority for the replacement of a permit if it has been lost, stolen, destroyed or damaged. (2) The authority must consider the application and either grant, or refuse to grant, the application. (3) The authority must grant the application if the authority is satisfied the permit has been lost, stolen or destroyed, or damaged in a way to require its replacement. (4) If the authority grants the application, the authority must, on payment of the reasonable cost of replacing the permit, issue another permit to the applicant to replace the lost, stolen, destroyed or damaged permit. 46 Notification on certificate of title (1) If a permit is issued under this division, the authority must notify the registrar of titles of the granting of the permit. (2) If the authority becomes aware that building work has been carried out, and that a permit should have been, but was not, obtained under this division for carrying out the building work, the authority must notify the registrar of titles of the carrying out of the building work without a permit. (3) On receiving a notification under this section, the registrar of titles must enter the notification in the file attached to the register and it may not be removed except under this section. (4) At the end of 7 years from entry of a notification, the registrar of titles may remove it from the file. (5) In this section-- register means-- (a) for freehold land--the freehold land register; or (b) for other land--the relevant register for the land. 47 Warnings (1) If-- (a) building work is carried out on land by a person who is not licensed to carry out that building work; and (b) the land is offered for sale within 6 years after completion of the building work; the vendor must, before the contract of sale is signed by the purchaser, give the prospective purchaser a notice containing details of the building work and a warning in the form required by regulation. (2) If a notice is not given as required by this section, the vendor will be taken to have given the purchaser a contractual warranty (which operates to the exclusion of any inconsistent provision of the contract of sale) that the building work was properly carried out. 48 Cancellation or suspension of licence The authority may suspend or cancel a licence if-- (a) the licence was obtained on the basis of incorrect information supplied to the authority, whether or not fraud was intended; or (b) the licence was obtained by fraud or other improper means; or (c) the licensee is convicted of an indictable offence or an offence that, if committed in Queensland, would be an indictable offence; or (e) the licensee is a company and it ceases, for a period exceeding 28 days, to have a nominee holding a licence authorising supervision of building work of the appropriate class or classes; or (f) the licensee is convicted of an offence against this Act; or (h) the licensee contravened a condition to which the licence is subject under section 35 or that is imposed under section 36 on the licensee's licence; or (i) the licensee owes an amount to the authority and fails to comply with a demand by the authority to discharge the debt; or (ia) the licensee fails to comply with a written request by the authority under this Act; or (j) the authority becomes aware of the existence of facts that, having regard to section 31(1)(a) or (2)(a), or 32(1)(g), or 32AA(1) (d), or 32AB(1)(d)-- (i) would allow the authority to refuse to issue the licence if it were now being applied for by the licensee; or (ii) would have allowed the authority to refuse to issue the licence originally. 49 Procedure for cancellation or suspension (1) The authority must, before cancelling or suspending a licence, give the licensee notice of its reasons for the proposed cancellation or suspension and allow the licensee 21 days from service of the notice to make written representations on the matter. (2) The authority must consider any written representations made within the time allowed under subsection (1) before imposing the cancellation or suspension. (3) A cancellation or suspension is imposed by written notice to the licensee. (4) The notice of cancellation or suspension must inform the licensee or former licensee of the right to apply to the tribunal for a review of the authority's decision. 49A Immediate suspension of licence (1) The authority may suspend a licensee's licence without allowing the licensee time to make written representations before the suspension takes effect if the authority believes, on reasonable grounds, there is a real likelihood that serious financial loss or other serious harm will happen to any of the following if the licence is not immediately suspended-- (a) other licensees; (b) the employees of other licensees; (c) consumers; (d) suppliers of building materials or services. (2) The suspension under subsection (1) is imposed by written notice given to the licensee that also-- (a) tells the licensee-- (i) the reasons for the suspension; and (ii) that the licensee may make written representations for a lifting of the suspension; and (iii) that the licensee may apply to the tribunal for a review of the authority's decision to immediately suspend the licence; and (b) briefly explains how the suspension could lapse under subsection (3). (3) The suspension under subsection (1) lapses if-- (a) the authority does not, within 10 days after the licensee is given notice of the suspension, give the licensee notice under section 49(1) of the authority's reasons for a proposed cancellation or suspension of the licence under section 48 (a section 49 notice); or (b) the authority, within 10 days after the licensee is given notice of the suspension, gives the licensee a section 49 notice, but the licence is not suspended or cancelled under section 48 within 3 months, or a longer period decided under subsections (4) and (5), after the section 49 notice is given; or (c) the authority suspends or cancels the licence under section 48. (4) The authority may extend the period of 3 months mentioned in subsection (3) (b), but only if it appears to the authority that, in the circumstances, it is in the interests of the licensee to do so. (5) The period may be extended more than once, but whenever it is extended, it must not be extended for more than 1 month. 49B Suspension or cancellation for failure to comply with tribunal's orders and directions (1) The tribunal may, in a proceeding to which a licensee is a party, order that the licensee's licence be suspended or cancelled if the licensee fails to comply with an order or direction of the tribunal within the time allowed by the tribunal. (2) Before ordering that a licence be suspended or cancelled, the tribunal must give the licensee a reasonable opportunity to show cause why it should not be cancelled or suspended. (3) Subsection (2) does not apply to an order or direction made in a disciplinary proceeding under part 7, division 4. (4) An order under this section operates, of its own force, to suspend or cancel the licence if the licensee fails to comply with the tribunal's order or direction within the time allowed by the tribunal. 50 Surrender of licence A licensee may, with the consent of the authority, surrender the licence. 50A Approved audit program (1) The Minister may approve a program (an approved audit program) under which the authority may audit licensees for 1 of the following purposes-- (a) to find out if they continue to satisfy the relevant financial requirements stated in the board's policies; (b) to find out if they have been complying with part 4A or part 5; (c) to find out if they have been complying with the Domestic Building Contracts Act 2000. (2) An approved audit program must state the following-- (a) the purpose of the program; (b) when the program starts; (c) the period over which the program is to be carried out; (d) objective criteria for selecting licensees who are to be the subject of audit; (e) if the licensees to be audited are to be selected from licensees holding licences of a particular class, a description of the class. (3) Despite anything in an approved audit program, a licensee may be the subject of an audit under an approved audit program for a purpose only if there has not been an audit of the licensee under an approved audit program for that purpose within the preceding 2 years. 50B Notice of proposed audit program (1) At least 14 days, but not more than 28 days, before an approved audit program starts, the authority must give notice of the program. (2) The notice must be published in the gazette, and may be published in any other publication the authority considers appropriate. (3) The notice must state the following-- (a) the purpose of the approved audit program; (b) when the program starts; (c) the period over which the program is to be carried out; (d) the objective criteria for selecting licensees who are to be the subject of audit; (e) if the licensees to be audited are to be selected from licensees holding licences of a particular class, a description of the class; (f) how licensees selected for audit under the program will be advised they have been selected; (g) the obligations to be complied with by licensees selected for audit under the program. 50C Supply of financial records and other documents under approved audit program or for other reason (1) This section applies to a licensee if-- (a) the licensee is selected to be audited under an approved audit program; or (b) the authority is satisfied, because of information received by the authority, there are reasonable grounds for concern that-- (i) the licensee does not satisfy the relevant financial requirements stated in the board's policies; or (ii) is not, or has not been, complying with-- (A) part 4A or part 5; or (B) the Domestic Building Contracts Act 2000. (2) The authority may give a written notice to the licensee requiring the licensee to give the authority copies of, or access to-- (a) the financial records described in the notice; or (b) the documents described in the notice that relate to the licensee's obligations-- (i) under part 4A or part 5; or (ii) the Domestic Building Contracts Act 2000. (3) The written notice may describe only-- (a) the financial records of the licensee the authority reasonably requires for deciding whether the licensee satisfies the relevant financial requirements stated in the board's policies; or (b) the documents the authority reasonably requires for deciding whether the licensee is, or has been, complying with-- (i) part 4A or part 5; or (ii) the Domestic Building Contracts Act 2000. (4) The licensee must comply with the written notice within 21 days after the licensee receives the written notice, unless the licensee has a reasonable excuse. Maximum penalty--100 penalty units. (4A) It is not a reasonable excuse to fail to comply with the written notice that complying with the notice might tend to incriminate the person. (5) Also, if the licensee does not comply with the written notice within 21 days after the licensee receives it, the licensee is taken, for section 48(h), to have contravened a condition imposed under section 36 on the licensee's licence. 50D Person must not pretend to be a licensee (1) A person must not pretend to be a licensee. Maximum penalty--250 penalty units. (2) Subsection (1) does not apply if the person makes use of another licensee's licence to pretend to be a licensee. 51 Improper use of licence card, certificate, number or PIN (1) A licensee must not allow another person to make use of the licensee's licence if the licensee knows, or ought reasonably to know, that the other person intends to make use of the licence-- (a) if the other person is not also a licensee--to pretend to be a licensee; or (b) if the other person is also a licensee--to pretend to be the holder of a licence authorising the doing of something the other person is not authorised to do. Maximum penalty--250 penalty units. (2) A person who is not a licensee must not make use of a licensee's licence to pretend to be a licensee. Maximum penalty--250 penalty units. (3) A licensee (the first licensee) must not make use of another licensee's licence to pretend to be the holder of a licence authorising the doing of something the first licensee is not authorised to do. Maximum penalty--250 penalty units. (4) In this section-- make use of, a licensee's licence, means make use of the number of the licensee's licence or the licensee's licence card, licence certificate or PIN. 51A Other offences relating to unlawful carrying out of building work (1) A licensed contractor must not help another person to carry out building work if the licensed contractor knows, or ought reasonably to know, that in carrying out the building work the other person is committing an offence against section 42. Maximum penalty--250 penalty units. (2) A licensed contractor must not carry out, or undertake to carry out, building work using a name, number or PIN other than the licensed contractor's name, number or PIN unless the contractor has a reasonable excuse. Maximum penalty--250 penalty units. 51B Licensed contractor must not contract with unlicensed person (1) This section applies to building work for which a person must hold a contractor's licence under this Act. Note-- A person mentioned in section 42(5) to (8) is not required to hold a contractor's licence in the circumstances stated in the subsections. (2) A licensed contractor must not contract with a person for the person to carry out the building work unless the person holds a contractor's licence of the appropriate class under this Act. Maximum penalty-- (a) for a first offence--80 penalty units; and (b) for a second offence--120 penalty units; and (c) for a third or subsequent offence--160 penalty units. (3) In a proceeding taken against a licensed contractor for an offence against this section it is a defence for the contractor to prove the contractor took all reasonable action to ensure compliance with this section. (4) Subsection (3) does not limit the application of the Criminal Code, section 23 or 24. 52 Signs to be exhibited (1) A licensed contractor (not being a subcontractor) must exhibit at a prominent position on a building site under the contractor's control a sign conforming with the regulations showing the name under which the contractor is licensed under this Act and the number of the contractor's licence. Maximum penalty--20 penalty units. (2) A person who carries out building work under an owner-builder permit must exhibit at a prominent position on a building site under that person's control a sign conforming with the regulations showing the number of the permit. Maximum penalty--20 penalty units. 53 Return of licence (1) A licensee (or former licensee) whose licence is suspended or cancelled must, within 14 days of receiving notice of the suspension or cancellation, return the licence and, if the authority has issued a licence certificate, the licence certificate, to the authority. (2) A licensee must, within 14 days of receiving notice of the imposition, variation or revocation of a condition of the licence return the licence and, if the authority has issued a licence certificate, the licence certificate, to the authority for endorsement. (3) A person who fails, without reasonable excuse, to comply with a requirement of this section commits an offence. Maximum penalty--80 penalty units. 53A Satisfying financial requirements at renewal (1) The authority must not renew a contractor's licence if the authority is not given information, in a form approved by the board, and within the time allowed under a regulation, about the contractor's continued satisfaction of the relevant financial requirements stated in the board's policies. (2) The form approved by the board may require some or all of the information to be given by a person suitably qualified and experienced in accountancy. (3) If the contractor does not give the authority the information mentioned in subsection (1), the authority may, by written notice given to the licensee, suspend the licence. (4) A suspension imposed under this section ends when the authority is given the information. (5) If a licence has remained in suspension under this section for more than 3 months, the authority may, by notice to the licensee, cancel the licence. 53B False or misleading documents about financial requirements (1) A person must not give a document or information to the authority about a contractor's satisfaction of financial requirements stated in the board's policies if-- (a) the person knows-- (i) the document contains information that is false or misleading; or (ii) the information is false or misleading; or (b) the document contains information that is false or misleading or the information is false or misleading and the person did not take reasonable steps to make sure that the information was not false or misleading. Maximum penalty--100 penalty units or 2 years imprisonment. (2) Subsection (1)(a) does not apply to a person who, when giving the document- - (a) informs the authority, to the best of the person's ability, how it is false or misleading; and (b) gives the correct information to the authority if the person has, or can reasonably obtain, the correct information. (3) A complaint against a person for an offence against subsection (1)(a) is sufficient if it states the document or information was false or misleading to the person's knowledge. 53C Advertising by unlicensed person (1) A person who does not hold a contractor's licence must not publish an advertisement that the person is available to carry out building work unless the advertisement complies with this section. (2) The advertisement must state the value of the work the person is entitled to carry out without a licence. Maximum penalty--100 penalty units. (3) A regulation may prescribe the following for an advertisement under this section-- (a) the way the advertisement is to be presented; (b) the words to be included in the advertisement. (4) In this section-- building work includes building work of any value, despite any regulation excluding building work of a stated value from the definition building work for this Act. 54 Advertisements A licensee who publishes or causes to be published any advertisement in connection with the licensee's business must ensure that the advertisement-- (a) contains the name under which the licensee is licensed; and (b) states that the licensee is licensed under this Act and the number of the licensee's licence; and (c) conforms with any other requirements imposed by regulation. Maximum penalty--35 penalty units. 55 Notification of company's nominee If a company that holds a licence-- (a) ceases to have a nominee; or (b) changes its nominee; the company must, within 14 days, give notice containing the information required by regulation to the authority. Maximum penalty--20 penalty units. 56 Partnerships (1) A licensed contractor may carry on business under the licence in partnership with an unlicensed person subject to the following conditions-- (a) no contract to carry out building work may be entered into, and no offer or tender to carry out building work may be made, on behalf of the partnership except by the licensed contractor; (b) any such contract offer or tender must be signed by the licensed contractor and have endorsed on it the names of the other members of the partnership; (c) any advertisement published in relation to the business carried on, or to be carried on, under the licence must state the name under which the licensed contractor is licensed and conform with any requirements imposed by regulation; (d) the unlicensed person must not be-- (i) an excluded individual; or (ii) a permanently excluded individual; or (iii) a convicted company officer; or (iv) a banned individual; or (v) a disqualified individual; or (vi) an excluded company; or (vii) a company for which a permanently excluded individual is a director, secretary, influential person or nominee; or (viii) a company for which a convicted company officer is a director, secretary, influential person or nominee; or (ix) a company for which a banned individual is a director, secretary, influential person or nominee; or (x) a company for which a disqualified individual is a director, secretary, influential person or nominee. (2) If a condition imposed by subsection (1) is contravened, each member of the partnership commits an offence. Maximum penalty-- (a) for subsection (1)(a) to (c)--80 penalty units; or (b) for subsection (1)(d)--200 penalty units. 56A Authority may request photographs for licence (1) Subsection (2) applies to a licensee who is an individual. (2) The authority may, at any time by written notice, request the licensee to give the authority 2 passport-size photographs of the applicant that are-- (a) recent photographs of the licensee; and (b) certified in the way prescribed by regulation; and (c) suitable for inclusion in the licensee's licence. (3) The licensee must provide the photographs within 28 days of receiving the request. 56AB Operation of pt 3A This part has effect despite anything in part 3, but does not apply to-- (a) a site supervisor's licence; or (b) a fire protection occupational licence. 56AC Excluded individuals and excluded companies (1) This section applies to an individual if-- (a) after the commencement of this section, the individual takes advantage of the laws of bankruptcy or becomes bankrupt (relevant bankruptcy event); and (b) 5 years have not elapsed since the relevant bankruptcy event happened. (2) This section also applies to an individual if-- (a) after the commencement of this section, a company, for the benefit of a creditor-- (i) has a provisional liquidator, liquidator, administrator or controller appointed; or (ii) is wound up, or is ordered to be wound up; and (b) 5 years have not elapsed since the event mentioned in paragraph (a)(i) or (ii) (relevant company event) happened; and (c) the individual-- (i) was, when the relevant company event happened, a director or secretary of, or an influential person for, the company; or (ii) was, at any time after the commencement of this section and within the period of 1 year immediately before the relevant company event happened, a director or secretary of, or an influential person for, the company. (3) If this section applies to an individual because of subsection (1), the individual is an excluded individual for the relevant bankruptcy event. (4) If this section applies to an individual because of subsection (2), the individual is an excluded individual for the relevant company event. (5) An excluded individual for a relevant bankruptcy event (the first event) does not also become an excluded individual for another relevant bankruptcy event (the other event) if the first event and the other event are both consequences flowing from what is, in substance, the one set of circumstances applying to the individual. (6) An excluded individual for a relevant company event (the first event) does not also become an excluded individual for another relevant company event (the other event) if the first event and the other event are both consequences flowing from what is, in substance, the one set of circumstances applying to the company. (7) A company is an excluded company if an individual who is a director or secretary of, or an influential person for, the company is an excluded individual for a relevant event. 56AD Becoming a permitted individual (1) An individual may apply to the authority, in the form approved by the Board, to be categorised as a permitted individual for a relevant event if the individual has been advised by the authority, or has otherwise been made aware, that the authority considers the individual to be an excluded individual for the relevant event. (2) However, if as a result of the application the individual is not categorised as a permitted individual for the relevant event, the individual may not, while the individual is an excluded individual for the relevant event, again apply to be categorised as a permitted individual for the relevant event. (3) If the individual applies, the application must include the reasons why the authority should categorise the individual as a permitted individual for the relevant event. (4) If the individual is a director or secretary of, or influential person for, a company that is a licensee, the company is taken to be a party to the application, and may make submissions to the authority about the application. (5) The authority must give its decision on the categorisation within 28 days, or a longer period agreed between the individual and the authority. (6) If the authority does not give its decision within the time required under subsection (5), the authority is taken, for section 86(1)(j) to have decided not to categorise the individual as a permitted individual for the relevant event. (7) Nothing in subsection (6) stops the authority, after the time required under subsection (5) has elapsed, from confirming the authority's refusal to categorise the individual as a permitted individual for the relevant event. (8) The authority may categorise the individual as a permitted individual for the relevant event only if the authority is satisfied, on the basis of the application, that the individual took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event. (8A) In deciding whether an individual took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of a relevant event, the authority must have regard to action taken by the individual in relation to the following-- (a) keeping proper books of account and financial records; (b) seeking appropriate financial or legal advice before entering into financial or business arrangements or conducting business; (c) reporting fraud or theft to the police; (d) ensuring guarantees provided were covered by sufficient assets to cover the liability under the guarantees; (e) putting in place appropriate credit management for amounts owing and taking reasonable steps for recovery of the amounts; (f) making appropriate provision for Commonwealth and State taxation debts. (8B) Nothing in subsection (8A) prevents the authority from having regard to other matters for deciding whether an individual took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of a relevant event. (9) If an individual is categorised as a permitted individual for a relevant event, the individual is taken not to be an excluded individual for the relevant event. 56AE Exclusion from licence The authority must not grant a person a licence if the person is-- (a) an excluded individual for a relevant event; or (b) an excluded company. 56AF Procedure if licensee is excluded individual (1) This section applies if the authority considers that an individual who is a licensee is an excluded individual for a relevant event. (2) The authority must give the individual a written notice identifying the relevant event and stating the following-- (a) why the authority considers the individual is an excluded individual for the relevant event; (b) the individual may apply to the authority to be categorised as a permitted individual for the relevant event if the individual has not already done so; (c) the circumstances, stated in subsection (3), in which the authority must cancel the individual's licence. (3) The authority must cancel the individual's licence by written notice given to the individual if-- (a) the individual has not already applied to be categorised as a permitted individual for the relevant event, and the individual does not apply for the categorisation within 28 days after the authority gives the individual the written notice under subsection (2); or (b) the individual has already applied to be categorised as a permitted individual for the relevant event, or the individual applies for the categorisation within the 28 days mentioned in paragraph (a), but-- (i) the authority refuses the application; and (ii) either of the following applies-- (A) the period for applying for a review of the decision to refuse has ended and no application for review has been made; (B) an application for review has been made and the authority's decision is confirmed, or the application is not proceeded with. (4) Section 49 does not apply to a cancellation under subsection (3). 56AG Procedure if licensee is excluded company (1) This section applies if the authority considers that a company that is a licensee is an excluded company. (2) The authority must give the company a written notice stating the following- - (a) particulars identifying the individual (the relevant individual) who is a director or secretary of, or an influential person for, the company and who is an excluded individual for a relevant event; (b) particulars identifying the relevant event; (c) within 28 days after the authority gives the company the written notice, the relevant individual must-- (i) stop being a director, secretary or influential person; or (ii) if the individual is eligible to do so but has not already done so, apply to the authority to be categorised as a permitted individual for the relevant event; (d) the circumstances, stated in subsections (3), (4) and (5), in which the authority must cancel the company's licence. (3) The authority must cancel the company's licence by written notice given to the company if, within the 28 days mentioned in subsection (2)(c), the relevant individual-- (a) does not stop being a director or secretary of, or an influential person for, the company; and (b) if the relevant individual is eligible to do so but has not already done so, does not apply to be categorised as a permitted individual for the relevant event. (4) The authority must also cancel the company's licence by written notice given to the company if all of the following apply-- (a) the relevant individual has already applied to be categorised as a permitted individual for the relevant event, or the relevant individual applies for the categorisation within the 28 days mentioned in subsection (2)(c); (b) the authority refuses the application and the relevant individual does not stop being a director, secretary or influential person; (c) either-- (i) the period for applying for a review of the decision to refuse has ended and no application for review has been made; or (ii) an application for review has been made and the authority's decision is confirmed, or the application is not proceeded with. (5) The authority must also cancel the company's licence by written notice given to the company if the relevant individual is not eligible to apply to the authority to be categorised as a permitted individual for the relevant event and the relevant individual does not, within the 28 days mentioned in subsection (2)(c), stop being a director, secretary or influential person. (6) Section 49 does not apply to a cancellation under subsection (3). 56AH Review by tribunal of authority's opinion (1) This section applies if the authority considers under section 56AF or 56AG (the relevant section) that a person is an excluded individual or excluded company, or that an individual is still a director or secretary of, or an influential person for, a company. (2) If a person applies for a review of the authority's decision, the application for review does not affect anything already done or in force under the relevant section, but periods of time mentioned in the relevant section are taken to stop running until the review is finished. 57 Operation of pt 3B This part has effect despite anything in part 3, but does not apply to-- (a) a site supervisor's licence; or (b) a fire protection occupational licence. 58 Meaning of permanently excluded individual (1) A permanently excluded individual is an individual-- (a) who has twice been an excluded individual for a relevant event; and (b) who for each relevant event has been given written notice by the authority stating-- (i) particulars identifying the relevant event; and (ii) why the authority considers the individual is an excluded individual for the relevant event; and (iii) that the individual has the right to apply to be categorised as a permitted individual for the relevant event within 28 days of being given notice; and (c) who for each occasion the individual has been given notice, either-- (i) did not apply to be categorised as a permitted individual within the time stated in the notice; or (ii) applied to be categorised as a permitted individual within the time stated but had the application refused. (2) Notice under subsection (1)(b)-- (a) must be given while the individual is an excluded individual for the relevant event to which the notice relates; and (b) if the notice is the second or a subsequent notice the individual has been given about being an excluded individual for a relevant event-- (i) must state the effect of the individual becoming a permanently excluded individual; and (ii) may be given at any time after an earlier notice was given. (3) An excluded individual who is a licensee is taken to have been given notice under subsection (1)(b) if-- (a) the individual has been given notice under section 56AF(2); and (b) for a second or subsequent notice, the notice also includes the information required under subsection (2)(b)(i). (4) A second or subsequent notice may be given for a relevant event whether the event happened before or after another event for which the authority has already given notice under subsection (1)(b). (5) However, subsection (1) applies only if an individual became an excluded individual for at least 1 of the relevant events after the commencement of this section, irrespective of when the circumstances resulting in the relevant event arose . (6) If a second or subsequent notice does not include the information required under subsection (2)(b)(i) another notice containing the information may be given. (7) It is declared that in deciding whether 2 relevant events as mentioned in subsection (1) have happened, a relevant event must be counted-- (a) whether the relevant event happened before or after the other relevant event; and (b) whether or not the notices under subsection (1)(b) for the relevant events were given in the order the relevant events happened; and (c) regardless of the length of time between the giving of the notices under subsection (1)(b) for the relevant events; and (d) whether the relevant event happened before or after the commencement of this section, subject to subsection (5) . Example for subsection (2)(a)-- The authority gives a licensee a notice under this section for a relevant event for which the licensee is currently an excluded individual. The authority later discovers that the licensee was, before the grant of the licensee's licence, an excluded individual for a previous relevant event. However, the licensee is not currently an excluded individual for this relevant event because 5 years have elapsed since the event happened. It may not give the licensee a notice for this event. Example for subsection (7)(a), (b) and (d)-- The authority gives a licensee a notice under this section for a relevant event that happened after the commencement of this section. It later discovers that the licensee is an excluded individual for another relevant event that happened before the grant of the licensee's licence and before the commencement of this section. It may give the licensee a notice for this relevant event. Also, it is the later notice, about the earlier relevant event, that must state the effect of the individual becoming a permanently excluded individual. Examples for subsection (7)(c)-- 1 The authority becomes aware that a person who is an applicant for a contractor's licence is currently an excluded individual for 2 relevant events 1 of which happened after the commencement of this section. The authority may give the person a notice for 1 of the relevant events and immediately give a notice for the other relevant event. Also, it is the later notice that must state the effect of the individual becoming a permanently excluded individual. 2 A licensee becomes an excluded individual for a relevant event. The individual's licence is cancelled under section 56AF and the individual is given notice complying with this section for the relevant event. More than 5 years later the licensee applies for and is granted a contractor's licence. Ten years after this, the licensee becomes an excluded individual for another relevant event. The authority gives a notice complying with this section for the latest relevant event. This notice includes the information required for a second or subsequent notice under subsection (2)(b)(i) and the individual becomes a permanently excluded individual. 59 Exclusion from licence The authority must not grant a person a licence if the person is-- (a) a permanently excluded individual; or (b) a company for which a permanently excluded individual is a director, secretary, influential person or nominee. 60 Permanently excluded individual not fit and proper A permanently excluded individual is taken not to be a fit and proper person for part 3, division 2. 61 When individual no longer permanently excluded individual In deciding whether an individual is, or continues to be, a permanently excluded individual, a relevant event for which the individual has been given notice under section 58(1)(b) must not be counted if the individual-- (a) applies to the tribunal under section 86(1)(j) for a review of the authority's decision not to categorise the individual as a permitted individual for the relevant event, and the tribunal reverses or annuls the authority's decision; or (b) applies to the tribunal under section 86(1)(k) for a review of the authority's decision under section 56AF that a person is an excluded individual, and the tribunal reverses or annuls the authority's decision. 62 Operation of pt 3C This part has effect despite anything in part 3, but does not apply to-- (a) a site supervisor's licence; or (b) a fire protection occupational licence. 63 Exclusion from licence The authority must not grant a person a licence if the person is-- (a) a convicted company officer; or (b) a company for which a convicted company officer is a director, secretary, influential person or nominee. 64 Procedure if authority considers individual a convicted company officer (1) This section applies if the authority considers that an individual is a convicted company officer. (2) The authority must give the individual a written notice stating-- (a) details of the conviction the authority considers makes the individual a convicted company officer; and (b) the effect of the individual being a convicted company officer; and (c) an invitation to the individual to make written submissions, within a stated period, to satisfy the authority that the individual is not a convicted company officer. (3) The stated period must be at least 28 days after the written notice is given to the individual. (4) The authority must consider any submissions made by the individual. 65 Ending procedure without further action (1) This section applies if, after considering submissions made by the individual, the authority is satisfied the individual is not a convicted company officer. (2) The authority must, as soon as practicable, advise the individual in writing that no further action under this part will be taken in relation to the notice given under section 64(2). 66 Notice of cancellation and that not a fit and proper person to individual who is a licensee (1) For an individual who is a licensee, subsection (3) applies if, after considering submissions made by the individual for the notice under section 64 (2), the authority still considers that the individual is a convicted company officer. (2) Subsection (3) also applies if there are no submissions for the notice under section 64(2). (3) The authority must, by written notice given to the individual-- (a) inform the individual that the authority still considers the individual is a convicted company officer; and (b) cancel the individual's licence; and (c) inform the individual-- (i) that the individual is taken not to be a fit and proper person for part 3, division 2; and (ii) of the individual's right to apply to the tribunal for a review of the authority's decision. Editor's note-- An individual may have the authority's decision reviewed by the tribunal under section 86(1)(l). (4) An individual given notice under subsection (3) is taken not to be a fit and proper person for part 3, division 2 as stated in the notice. (5) Section 49 does not apply to a cancellation under subsection (3). 67 Notice that not a fit and proper person to individual who is not a licensee (1) For an individual who is not a licensee, subsection (3) applies if, after considering submissions made by the individual for the notice under section 64 (2), the authority still considers that the individual is a convicted company officer. (2) Subsection (3) also applies if there are no submissions for the notice under section 64(2). (3) The authority must, by written notice given to the individual, inform the individual-- (a) that the authority still considers the individual is a convicted company officer; and (b) that the individual is taken not to be a fit and proper person for part 3, division 2; and (c) of the individual's right to apply to the tribunal for a review of the authority's decision. (4) An individual given notice under subsection (3) is taken not to be a fit and proper person for part 3, division 2 as stated in the notice. 67AA Notice by authority to company for which a convicted company officer is a director, secretary, influential person or nominee (1) This section applies if the authority considers that a company that is a licensee has an individual who is a convicted company officer as a director or secretary of, or an influential person or nominee for, the company. (2) The authority must give the company a written notice stating-- (a) particulars identifying the individual (the relevant individual) the authority considers is a director or secretary of, or an influential person or nominee for, the company; and Editor's note-- A company may have the authority's decision reviewed by the tribunal under section 86(1)(m). (b) that the relevant individual must stop being a director, secretary, influential person or nominee within 28 days after the authority gives the individual the written notice; and (c) the authority must cancel the licensee's licence if the relevant individual does not stop being a director, secretary, influential person or nominee within the 28 days mentioned in paragraph (b). (3) The authority must cancel the company's licence by written notice given to the company if the relevant individual does not stop being a director, secretary, influential person or nominee within the 28 days mentioned in subsection (2)(b). (4) Section 49 does not apply to a cancellation under subsection (3). 67AB Meaning of tier 1 defective work and carry out tier 1 defective work (1) Tier 1 defective work means grossly defective building work that-- (a) falls below the standard reasonably expected of a licensed contractor for the type of building work; and (b) either-- (i) adversely affects the structural performance of a building to the extent that a person could not reasonably be expected to use the building for the purpose for which it was, or is being, erected or constructed; or (ii) is likely to cause the death of, or grievous bodily harm to, a person. Example for paragraph (b)(i)-- A building is constructed and due to substandard building work all or a significant part of the building requires demolition or substantial reconstruction. Examples for paragraph (b)(ii)-- A fire protection contractor installs a fire protection system that does not meet the requirements of the Building Code of Australia for the system. In the event of fire, the noncompliance is likely to result in the death of, or grievous bodily harm to, a person. (2) Carry out tier 1 defective work means-- (a) carry out tier 1 defective work personally; or (b) directly or indirectly, cause tier 1 defective work to be carried out; or (c) provide advisory, administrative, management or supervisory services for carrying out tier 1 defective work. 67AC Banned individual (1) An individual is a banned individual if the individual is given notice under this part that the individual is taken not to be a fit and proper person for part 3, division 2. (2) The individual continues to be a banned individual for the term calculated under this part and stated in the notice. 67AD Operation of pt 3D This part has effect despite anything in part 3. 67AE Exclusion from licence The authority must not grant a person a licence if the person is-- (a) a banned individual; or (b) a company for which a banned individual is a director, secretary, influential person or nominee. 67AF Procedure if authority considers individual has carried out tier 1 defective work (1) This section applies if the authority considers that an individual has carried out tier 1 defective work after the commencement of this section. (2) The authority may give the individual a written notice stating-- (a) details of the tier 1 defective work; and (b) the effect of the individual becoming a banned individual for the tier 1 defective work; and (c) an invitation to the individual to make written submissions, within a stated period, to satisfy the authority that-- (i) the individual did not carry out the work stated in the notice; or (ii) the work carried out by the individual was not tier 1 defective work; or (iii) the individual exercised reasonable diligence to ensure that the work carried out was not defective. Example for subparagraph (iii)-- An individual carried out tier 1 defective work in relation to the footings of a house. However, the individual had reasonably relied on plans for the footings drawn by an engineer and carried out the work in accordance with the plans. It was the reliance on the plans that caused the tier 1 defective work. (3) The stated period must be at least 28 days after the written notice is given to the individual. (4) The authority must consider any submissions made by the individual. 67AG Ending procedure without further action (1) This section applies if, after considering submissions made by the individual, the authority is satisfied that-- (a) the individual did not carry out the work stated in the notice; or (b) the work carried out by the individual was not tier 1 defective work; or (c) the individual exercised reasonable diligence to ensure that the work carried out was not defective. (2) The authority must, as soon as practicable, advise the individual in writing that no further action under this part will be taken in relation to the written notice given under section 67AF(2). 67AH Notice of cancellation and that not a fit and proper person to individual who is a licensee (1) For an individual who is a licensee, subsection (3) applies if, after considering the submissions made by the individual for the notice under section 67AF(2), the authority-- (a) still considers that-- (i) the individual carried out the work stated in the notice; and (ii) the work carried out was tier 1 defective work; and (b) is not satisfied that the individual exercised reasonable diligence to ensure that the work carried out was not defective. (2) Subsection (3) also applies if there are no submissions for the notice under section 67AF(2). (3) The authority must, by written notice given to the individual-- (a) inform the individual that the authority-- (i) still considers-- (A) that the individual carried out the work stated in the notice; and (B) the work carried out was tier 1 defective work; and (ii) is not satisfied that the individual exercised reasonable diligence to ensure that the work carried out was not defective; and (b) cancel the individual's licence; and (c) inform the individual-- (i) that the individual is taken not to be a fit and proper person for part 3, division 2, for the term calculated under section 67AO and stated in the notice; and (ii) of the individual's right to apply to the tribunal for a review of the authority's decision. Editor's note-- An individual who is given notice that they are taken not to be a fit and proper person (a banned individual) for a stated term may have the authority's decision reviewed under section 86(1)(n). (4) An individual given notice under subsection (3) is taken not to be a fit and proper person for part 3, division 2 as stated in the notice. (5) Section 49 does not apply to a cancellation under subsection (3). 67AI Notice that not a fit and proper person to individual who is not a licensee (1) For an individual who is not a licensee, subsection (3) applies if, after considering the submissions made by the individual for the notice under section 67AF(2), the authority-- (a) still considers that-- (i) the individual carried out the work stated in the notice; and (ii) the work carried out was tier 1 defective work; and (b) is not satisfied that the individual exercised reasonable diligence to ensure that the work carried out was not defective. (2) Subsection (3) also applies if there are no submissions for the notice under section 67AF(2). (3) The authority must, by written notice given to the individual, inform the individual-- (a) that the authority-- (i) still considers that-- (A) the individual carried out the work stated in the notice; and (B) the work carried out was tier 1 defective work; and (ii) is not satisfied that the individual exercised reasonable diligence to ensure that the work carried out was not defective; and (b) that the individual is taken not to be a fit and proper person for part 3, division 2, for the term calculated under section 67AO and stated in the notice; and (c) of the individual's right to apply to the tribunal for a review of the authority's decision. Editor's note-- An individual who is given notice that they are taken not to be a fit and proper person (a banned individual) for a stated term may have the authority's decision reviewed under section 86(1)(n). (4) An individual given notice under subsection (3) is taken not to be a fit and proper person for part 3, division 2 as stated in the notice. 67AJ Notice by authority to director, secretary, influential person or nominee about tier 1 defective work (1) This section applies if the authority considers that a company has carried out tier 1 defective work after the commencement of this section. (2) The authority may give an individual who was a director or secretary of, or an influential person or nominee for, the company at the time the work was carried out, a written notice stating-- (a) details of the tier 1 defective work; and (b) the effect of the director, secretary, influential person or nominee becoming a banned individual for the tier 1 defective work; and (c) an invitation to the director, secretary, influential person or nominee to make written submissions, within a stated period, to satisfy the authority that-- (i) the company did not carry out the work stated in the notice; or (ii) the work carried out by the company was not tier 1 defective work; or (iii) the director, secretary, influential person or nominee exercised reasonable diligence to ensure that the work carried out was not defective; or (iv) the director, secretary, influential person or nominee was not in a position to influence the conduct of the company's affairs in relation to the defective work. (3) The stated period must be at least 28 days after the written notice is given to the director, secretary, influential person or nominee. (4) The authority must consider any submissions made by the director, secretary, influential person or nominee. 67AK Ending procedure without further action (1) This section applies if, after considering submissions made by the director, secretary, influential person or nominee, the authority is satisfied that-- (a) the company did not carry out the work stated in the notice; or (b) the work carried out by the company was not tier 1 defective work; or (c) the director, secretary, influential person or nominee exercised reasonable diligence to ensure that the work carried out was not defective; or (d) the director, secretary, influential person or nominee was not in a position to influence the conduct of the company's affairs in relation to the defective work. (2) The authority must, as soon as practicable, advise the director, secretary, influential person or nominee in writing that no further action under this part will be taken in relation to the notice given under section 67AJ(2). 67AL Notice of cancellation and that not a fit and proper person to director, secretary, influential person or nominee who is a licensee (1) For a director, secretary, influential person or nominee who is a licensee, subsection (3) applies if, after considering the submissions made by the director, secretary, influential person or nominee for the notice under section 67AJ(2), the authority-- (a) still considers-- (i) that the company carried out the work stated in the notice; and (ii) that the work carried out was tier 1 defective work; and (b) is not satisfied-- (i) that the director, secretary, influential person or nominee was not in a position to influence the conduct of the company's affairs in relation to the defective work; or (ii) that the director, secretary, influential person or nominee exercised reasonable diligence to ensure that the work carried out was not defective. (2) Subsection (3) also applies if there are no submissions for the notice under section 67AJ(2). (3) The authority must, by written notice given to the director, secretary, influential person or nominee-- (a) inform the director, secretary, influential person or nominee that the authority-- (i) still considers-- (A) that the company carried out the work stated in the notice; and (B) that the work carried out was tier 1 defective work; and (ii) is not satisfied-- (A) that the director, secretary, influential person or nominee was not in a position to influence the conduct of the company's affairs in relation to the defective work; or (B) that the director, secretary, influential person or nominee exercised reasonable diligence to ensure that the work carried out was not defective; and (b) cancel the director's, secretary's, influential person's or nominee's licence; and (c) inform the director, secretary, influential person or nominee-- (i) that the director, secretary, influential person or nominee is taken not to be a fit and proper person for part 3, division 2, for the term calculated under section 67AO and stated in the notice; and (ii) of the director's, secretary's, influential person's or nominee's right to apply to the tribunal for a review of the authority's decision. Editor's note-- A director, secretary, influential person or nominee who is given notice that they are taken not to be a fit and proper person (a banned individual) for a stated term may have the authority's decision reviewed under section 86(1)(n). (4) A director, secretary, influential person or nominee given notice under subsection (3) is taken not to be a fit and proper person for part 3, division 2 as stated in the notice. (5) Section 49 does not apply to a cancellation under subsection (3). 67AM Notice that not a fit and proper person to director, secretary, influential person or nominee who is not a licensee (1) For a director, secretary, influential person or nominee who is not a licensee, subsection (3) applies if, after considering the submissions made by the director, secretary, influential person or nominee for the notice under section 67AJ(2), the authority-- (a) still considers-- (i) that the company carried out the work stated in the notice; and (ii) that the work carried out was tier 1 defective work; and (b) is not satisfied-- (i) that the director, secretary, influential person or nominee was not in a position to influence the conduct of the company's affairs in relation to the defective work; or (ii) that the director, secretary, influential person or nominee exercised reasonable diligence to ensure that the work carried out was not defective. Editor's note-- A nominee who is included in this provision as a person who was a licensed nominee when the company carried out the defective work may not be licensed when the notice is given. (2) Subsection (3) also applies if there are no submissions for the notice under section 67AJ(2). (3) The authority must, by written notice given to the director, secretary, influential person or nominee inform the director, secretary, influential person or nominee-- (a) that the authority-- (i) still considers-- (A) that the company carried out the work stated in the notice; and (B) that the work carried out was tier 1 defective work; and (ii) is not satisfied-- (A) that the director, secretary, influential person or nominee was not in a position to influence the conduct of the company's affairs in relation to the defective work; or (B) that the director, secretary, influential person or nominee exercised reasonable diligence to ensure that the work carried out was not defective; and (b) that the director, secretary, influential person or nominee is taken not to be a fit and proper person for part 3, division 2, for the term calculated under section 67AO and stated in the notice; and (c) of the director's, secretary's, influential person's or nominee's right to apply to the tribunal for a review of the authority's decision. Editor's note-- A director, secretary, influential person or nominee who is given notice that they are taken not to be a fit and proper person (a banned individual) for a stated term may have the authority's decision reviewed under section 86(1)(n). (4) A director, secretary, influential person or nominee given notice under subsection (3) is taken not to be a fit and proper person for part 3, division 2 as stated in the notice. 67AN Notice by authority to company for which a banned individual is a director, secretary, influential person or nominee (1) This section applies if the authority considers that a company that is a licensee has an individual who is a banned individual as a director or secretary of, or an influential person or nominee for, the company. (2) The authority must give the company a written notice stating-- (a) particulars identifying the individual (the relevant individual) the authority considers is a director or secretary of, or an influential person or nominee for, the company; and Editor's note-- A company may have the authority's decision reviewed under section 86 (1)(o). (b) that the relevant individual must stop being a director, secretary, influential person or nominee within 28 days after the authority gives the company the written notice; and (c) the authority must cancel the company's licence if the relevant individual does not stop being a director, secretary, influential person or nominee within the 28 days mentioned in paragraph (b). (3) The authority must cancel the company's licence by written notice given to the company if the relevant individual does not stop being a director, secretary, influential person or nominee within the 28 days mentioned in subsection (2)(b). (4) Section 49 does not apply to a cancellation under subsection (3). 67AO Terms of bans (1) This section states the term for which an individual given a notice under section 67AH, 67AI, 67AL or 67AM is taken not to be a fit and proper person for part 3, division 2 (the term of ban). (2) Only tier 1 defective work carried out after the commencement of this section may be taken into account in calculating the term of ban. (3) The term of ban for an individual given a notice for tier 1 defective work for the first time is 3 years. (4) The term of ban for an individual given a notice for tier 1 defective work a second time or subsequent time is the life of the individual. (5) A notice may be given to an individual a second time or subsequent time under section 67AH, 67AI, 67AL or 67AM if-- (a) a notice for tier 1 defective work has been given under 1 of the sections stating a ban of 3 years; and (b) the second or subsequent notice relates to tier 1 defective work carried out after the notice stating a ban of 3 years is given. (6) It is declared that, in deciding whether a notice for tier 1 defective work has been given to an individual a second time or subsequent time, a notice given to an individual for the first time under section 67AH, 67AI, 67AL or 67AM stating a ban of 3 years must be counted whether or not the individual has served the term of the ban. Example for subsections (5) and (6)-- An individual who is a licensee is given a notice under section 67AH for tier 1 defective work carried out by the individual. The notice informs the individual that the individual is taken not to be a fit and proper person for part 3, division 2 for 3 years. After the notice under section 67AH is given, the individual carries out other tier 1 defective work. The authority may give the individual a second notice under section 67AH for the other tier 1 defective work whether or not the 3 years have passed. Also, it is the second notice under section 67AH that informs the individual that the individual is taken not to be a fit and proper person for part 3, division 2 for the life of the individual. (7) However, in deciding whether a notice for tier 1 defective work is given to an individual a second time or subsequent time, an earlier notice given to an individual under section 67AH, 67AI, 67AL or 67AM must not be counted if-- (a) the earlier notice was given more than 10 years before the second or subsequent notice; or (b) the authority's decision under the earlier notice was reversed or annulled on review by the tribunal. (8) In this section a reference to tier 1 defective work carried out is-- (a) for an individual given notice under section 67AH(3) or 67AI(3)-- a reference to tier 1 defective work carried out by the individual; or (b) for an individual given notice under section 67AL(3) or 67AM(3)-- a reference to tier 1 defective work carried out by the company for which the individual was a director, secretary, influential person or nominee. 67AP Relationship of this part with pt 7, div 4 (1) Subsection (2) applies if the authority has applied under section 88 for disciplinary action relating to defective building work on a ground mentioned in section 89(i) or 90(d) and the tribunal has decided the proceeding. (2) The authority must not give a notice under section 67AF or 67AJ in relation to the building work mentioned in subsection (1). (3) Nothing in subsection (1) or (2) prevents the authority from-- (a) withdrawing an application mentioned in subsection (1) relating to defective building work that has not been decided by the tribunal; and (b) giving a notice under section 67AF or 67AJ for the same building work. Editor's note-- Under the Tribunal Act, section 64, the tribunal may make an order for costs against an applicant that withdraws an application. (4) Subsection (5) applies if the authority has given a notice to an individual under section 67AF or 67AJ and is proceeding under this part. (5) The authority may apply under section 88 in relation to defective work stated in a notice to an individual under section 67AF or 67AJ only if the authority has not given the individual notice under section 67AH, 67AI, 67AL or 67AM. (6) Subsection (7) applies if-- (a) an individual has applied under section 86(1)(n) for a review of the authority's decision under section 67AH, 67AI, 67AL or 67AM; and (b) the tribunal reverses or annuls the authority's decision. (7) The tribunal must, in the same proceeding, decide whether proper grounds exist for taking disciplinary action against-- (a) the individual, in relation to the building work stated in a notice under section 67AF; or (b) the company for which the individual is a director, secretary, influential person or nominee, in relation to the building work stated in a notice under section 67AJ. (8) For subsection (7), the authority is taken to have applied under section 88 and the tribunal must consider whether proper grounds exist under 89(i) or 90 (d). 67AQ Definitions for pt 3E In this part-- accumulate-- A person accumulates a demerit point when the demerit point takes effect if it is subsequently allocated to the person. administering authority see the State Penalties Enforcement Act 1999, schedule 2. building contract see section 67AAA. conviction, of a person for a demerit offence, includes the following in relation to the offence-- (a) a court finding the person guilty or accepting the person's plea of guilty, whether or not a conviction is recorded; (b) the person paying a fine under an infringement notice, in full; (c) the person paying the first instalment of a fine under an infringement notice; (d) the registration by the registrar of a default certificate for an infringement notice given to the person; (e) a decision of the tribunal under the Tribunal Act that proper grounds exist for taking disciplinary action against the person for a contravention mentioned in section 67AR(1)(b) or (2)(b). Editor's note-- See sections 89(a) and 91. default certificate see the State Penalties Enforcement Act 1999, schedule 2. demerit matter means-- (a) a conviction for a demerit offence; or (b) an unsatisfied judgment debt. demerit offence see section 67AR. demerit points means demerit points allocated by the authority under this part for a demerit matter. disqualified individual see section 67AU. infringement notice see the State Penalties Enforcement Act 1999, schedule 2. judgment debt see section 67AS. period of 3 years, in relation to the accumulation of demerit points, means a period of 3 years or less. registrar see the State Penalties Enforcement Act 1999, schedule 2. SPER see the State Penalties Enforcement Act 1999, schedule 2. unsatisfied, in relation to a judgment debt, see section 67AT. 67AR Meaning of demerit offence (1) A demerit offence is-- (a) an offence, committed after the commencement of this subsection, against-- (i) section 67G, 67I or 67V; or (ii) the Domestic Building Contracts Act 2000, section 64, 65, 66 or 67; or (b) a contravention, after the commencement of this subsection, by a licensee, of a requirement imposed under a section mentioned in paragraph (a). (2) Also, a demerit offence is-- (a) an offence, committed after the commencement of this subsection, against-- (i) section 42B, 68(1) or 72(10); or (ii) the Domestic Building Contracts Act 2000, section 26; or (iii) the Domestic Building Contracts Act 2000, section 27 to the extent it relates to noncompliance with the formal requirement mentioned in section 27(2)(f); or (b) a contravention, after the commencement of this subsection, by a licensee, of a requirement imposed under a provision mentioned in paragraph (a). 67AS Meaning of judgment debt (1) A judgment debt is the amount, for which judgment has been entered in a court of competent jurisdiction, owing by a building contractor-- (a) in relation to a building contract or a domestic building contract; or (b) for goods or services supplied for-- (i) building work to be carried out under a building contract; or (ii) domestic building work to be carried out under a domestic building contract; or (c) to the authority for a claim under the statutory insurance scheme. (2) Judgment must be entered after the commencement of this section. (3) However, the circumstances giving rise to the judgment debt may have arisen before the commencement of this section. 67AT Meaning of unsatisfied judgment debt (1) A judgment debt is unsatisfied if it has not been paid in full within-- (a) 28 days after judgment is entered; or (b) if a longer period is allowed by the court for payment--the longer period. (2) A judgment debt is not unsatisfied if the judgment creditor has accepted and been paid an amount in full and final settlement within the relevant period mentioned in subsection (1). 67AU Disqualified individual (1) An individual is a disqualified individual if the individual is given notice under this part that the individual is taken not to be a fit and proper person for part 3, division 2. (2) The individual continues to be a disqualified individual for the term calculated under this part and stated in the notice. 67AV Operation of pt 3E This part has effect despite anything in part 3, but does not apply to-- (a) a site supervisor's licence; or (b) a fire protection occupational licence. 67AW Demerit points for demerit matters (1) This section applies to a person who-- (a) has a conviction for a demerit offence; or (b) is a judgment debtor for an unsatisfied judgment debt. (2) The authority must allocate demerit points under this part to the person as follows-- (a) for a conviction for a demerit offence--2 points; (b) for an unsatisfied judgment debt--10 points. (3) This section is subject to section 67AZB. 67AX When demerit points allocated for demerit offences (1) The authority must allocate demerit points to a person for a conviction for a demerit offence as soon as practicable after the points take effect. (2) Demerit points for a conviction for a demerit offence take effect-- (a) if a court finds a person guilty--on the day after the last day on which the person may appeal the finding; or (b) if a court accepts a person's plea of guilty--on the day the plea is accepted; or (c) if a person pays the fine under an infringement notice, in full-- on the day the fine is paid; or (d) if a person applies to the administering authority to pay the fine under an infringement notice, by instalments--on the day the administering authority receives the first instalment; or (e) if the administering authority gives a default certificate to SPER for registration--on the day the default certificate is registered; or (f) if the tribunal decides that proper grounds exist for taking disciplinary action against a person for a contravention mentioned in section 67AR(1)(b) or (2)(b)--on the day after the last day on which the person may appeal the tribunal's decision. (3) However, if a conviction for a demerit offence is appealed, demerit points for the conviction must not be allocated until the appeal is finally dealt with or withdrawn. (4) Also, if a conviction for a demerit offence is appealed and after the appeal there is no conviction, demerit points stop having effect. 67AY When demerit points allocated for unsatisfied judgment debts (1) The authority must allocate demerit points to a person for an unsatisfied judgment debt as soon as practicable after the points take effect. (2) Demerit points take effect when the judgment debt becomes an unsatisfied judgment debt. (3) However, if a decision relating to a judgment is appealed or an application is made to set the judgment aside, demerit points must not be allocated for the unsatisfied judgment debt until the appeal or application is finally dealt with or withdrawn. (4) Also, if a decision relating to a judgment is appealed or an application is made to set the judgment aside and after the appeal or application there is no unsatisfied judgment debt, demerit points stop having effect. 67AZ Judgment debtor must notify unsatisfied judgment debt (1) A judgment debtor for a judgment debt must notify the authority within 14 days after the judgment debt becomes an unsatisfied judgment debt. Maximum penalty--40 penalty units. (2) Notification under subsection (1) must include the following-- (a) particulars of the debt; (b) the name and address of the judgment debtor; (c) the name and address of the judgment creditor; (d) the date judgment was entered and the amount for which it was entered; (e) the court in which it was entered; (f) the number of the proceeding for which it was entered sufficient to allow a search of the court registry; (g) details of any payments made to reduce the judgment debt. 67AZA Authority must notify person about demerit points (1) Subsection (2) applies if the authority allocates demerit points to a person. (2) The authority must, as soon as practicable after the demerit points are allocated, notify the person in writing of-- (a) the demerit points allocated; and (b) the demerit matters for which they were allocated; and (c) the date the points took effect. 67AZB Limit on demerit points from single audit or investigation (1) This section applies if a licensee is convicted of demerit offences discovered by the authority as a result of a written notice given to a licensee under section 50C(2). (2) The maximum demerit points that may be allocated to the licensee for the convictions for the demerit offences is 6. (3) Nothing in this section prevents another 6 demerit points being allocated to the licensee for convictions for demerit offences discovered by the authority as a result of a later written notice given under section 50C(2). (4) However other demerit points must not be allocated-- (a) if the earlier notice and the later notice relate to-- (i) the same audit under an approved audit program; or (ii) information received by the authority from the same source; or (b) for convictions for demerit offences discovered by the authority as a result of a later notice if the offences-- (i) were committed before an earlier notice; and (ii) demerit offences were discovered as a result of the earlier notice and resulted in the allocation of demerit points. 67AZC Exclusion from licence The authority must not grant a person a licence if the person is-- (a) a disqualified individual; or (b) a company for which a disqualified individual is a director, secretary, influential person or nominee. 67AZD Procedure if authority considers individual has accumulated 30 demerit points (1) This section applies if the authority considers that an individual has accumulated 30 demerit points in a period of 3 years. (2) The authority must give the individual a written notice stating-- (a) details of the demerit matters for which the demerit points have accumulated and the dates the points took effect; and (b) the effect of the individual becoming a disqualified individual for accumulating 30 demerit points in a period of 3 years; and (c) an invitation to the individual to make written submissions, within a stated period, to satisfy the authority that the individual has not accumulated 30 demerit points in a period of 3 years. (3) The stated period must be at least 28 days after the written notice is given to the individual. (4) The authority must consider any submissions made by the individual. (5) In deciding whether an individual has accumulated 30 demerit points in a period of 3 years, demerit points must not be counted for an unsatisfied judgment debt paid in full before the end of the stated period. 67AZE Ending procedure without further action (1) This section applies if, after considering submissions made by the individual, the authority is satisfied the individual has not accumulated 30 demerit points in a period of 3 years. (2) The authority must, as soon as practicable, advise the individual in writing that no further action under this part will be taken in relation to the notice given under section 67AZD(2). 67AZF Notice of cancellation and that not a fit and proper person to individual who is a licensee (1) For an individual who is a licensee, subsection (3) applies if, after considering submissions made by the individual for the notice under section 67AZD(2), the authority still considers that the individual has accumulated 30 demerit points in a period of 3 years. (2) Subsection (3) also applies if there are no submissions for the notice under section 67AZD(2). (3) The authority must, by written notice given to the individual-- (a) inform the individual that the authority still considers the individual has accumulated 30 demerit points in a period of 3 years; and (b) cancel the individual's licence; and (c) inform the individual-- (i) that the individual is taken not to be a fit and proper person for part 3, division 2 for the term calculated under section 67AZM and stated in the notice; and (ii) of the individual's right to apply to the tribunal for a review of the authority's decision. Editor's note-- An individual who is given notice that they are taken not to be a fit and proper person (a disqualified individual) for a stated term may have the authority's decision reviewed under section 86(1)(p). (4) An individual given notice under subsection (3) is taken not to be a fit and proper person for part 3, division 2 as stated in the notice. (5) Section 49 does not apply to a cancellation under subsection (3). 67AZG Notice that not a fit and proper person to individual who is not a licensee (1) For an individual who is not a licensee, subsection (3) applies if, after considering submissions made by the individual for the notice under section 67AZD(2), the authority still considers that the individual has accumulated 30 demerit points in a period of 3 years. (2) Subsection (3) also applies if there are no submissions for the notice under section 67AZD(2). (3) The authority must, by written notice given to the individual, inform the individual-- (a) that the authority still considers the individual has accumulated 30 demerit points in a period of 3 years; and (b) that the individual is taken not to be a fit and proper person for part 3, division 2 for the term calculated under section 67AZM and stated in the notice; and (c) of the individual's right to apply to the tribunal for a review of the authority's decision. Editor's note-- An individual who is given notice that they are taken not to be a fit and proper person (a disqualified individual) for a stated term may have the authority's decision reviewed under section 86(1)(p). (4) An individual given notice under subsection (3) is taken not to be a fit and proper person for part 3, division 2 as stated in the notice. 67AZH Notice by authority to director, secretary, influential person or nominee about demerit points (1) This section applies if the authority considers that a company has accumulated 30 demerit points in a period of 3 years. (2) The authority may give an individual who was a director or secretary of, or an influential person or nominee for, the company at the times the 30 demerit points were accumulated, a written notice stating-- (a) details of the demerit matters for which the demerit points have accumulated and the dates the points took effect; and (b) the effect of the director, secretary, influential person or nominee becoming a disqualified individual because the company has accumulated 30 demerit points in a period of 3 years; and (c) an invitation to the director, secretary, influential person or nominee to make written submissions, within a stated period, to satisfy the authority that-- (i) the company has not accumulated 30 demerit points in a period of 3 years; or (ii) the director, secretary, influential person or nominee exercised reasonable diligence to ensure that some or all of the matters for which the demerit points accumulated did not happen; or (iii) the director, secretary, influential person or nominee was not in a position to influence the conduct of the company's affairs in relation to some or all of the matters for which the demerit points accumulated. (3) The stated period must be at least 28 days after the written notice is given to the director, secretary, influential person or nominee. (4) The authority must consider any submissions made by the director, secretary, influential person or nominee. (5) In deciding whether a company has accumulated 30 demerit points in a period of 3 years, demerit points must not be counted for an unsatisfied judgment debt paid in full before the end of the stated period. 67AZI Ending procedure without further action (1) This section applies if, after considering submissions made by the director, secretary, influential person or nominee, the authority is satisfied that-- (a) the company has not accumulated 30 demerit points in a period of 3 years; or (b) the director, secretary, influential person or nominee exercised reasonable diligence to ensure that some or all of the demerit matters for which the demerit points accumulated did not happen; or (c) the director, secretary, influential person or nominee was not in a position to influence the conduct of the company's affairs in relation to some or all of the demerit matters for which the demerit points accumulated. (2) The authority must, as soon as practicable, advise the director, secretary, influential person or nominee in writing that no further action under this part will be taken in relation to the notice given under section 67AZH(2). (3) However, subsection (2) does not apply if at least 30 demerit points remain after taking into account the demerit matters mentioned in subsection (1)(b) and (c). 67AZJ Notice of cancellation and that not a fit and proper person to director, secretary, influential person or nominee who is a licensee (1) For a director, secretary, influential person or nominee who is a licensee, subsection (3) applies if, after considering the submissions made by the director, secretary, influential person or nominee for the notice under section 67AZH(2), the authority-- (a) still considers that the company has accumulated 30 demerit points in a period of 3 years; and (b) is not satisfied, in relation to demerit matters for which at least 30 demerit points accumulated-- (i) that the director, secretary, influential person or nominee was not in a position to influence the conduct of the company's affairs; or (ii) that the director, secretary, influential person or nominee exercised reasonable diligence to ensure that the demerit matters did not happen. (2) Subsection (3) also applies if there are no submissions for the notice under section 67AZH(2). (3) The authority must, by written notice given to the director, secretary, influential person or nominee-- (a) inform the director, secretary, influential person or nominee that the authority-- (i) still considers that the company has accumulated 30 demerit points in a period of 3 years; and (ii) is not satisfied, in relation to demerit matters for which at least 30 demerit points accumulated-- (A) that the director, secretary, influential person or nominee was not in a position to influence the conduct of the company's affairs; or (B) that the director, secretary, influential person or nominee exercised reasonable diligence to ensure that the demerit matters did not happen; and (b) cancel the director's, secretary's, influential person's or nominee's licence; and (c) inform the director, secretary, influential person or nominee-- (i) that the director, secretary, influential person or nominee is taken not to be a fit and proper person for part 3, division 2, for the term calculated under section 67AZM and stated in the notice; and (ii) of the director's, secretary's, influential person's or nominee's right to apply to the tribunal for a review of the authority's decision. Editor's note-- A director, secretary, influential person or nominee who is given notice that they are taken not to be a fit and proper person (a disqualified individual) for a stated term may have the authority's decision reviewed under section 86(1)(p). (4) A director, secretary, influential person or nominee given notice under subsection (3) is taken not to be a fit and proper person for part 3, division 2 as stated in the notice. (5) Section 49 does not apply to a cancellation under subsection (3). 67AZK Notice that not a fit and proper person to director, secretary, influential person or nominee who is not a licensee (1) For a director, secretary, influential person or nominee who is not a licensee, subsection (3) applies if, after considering the submissions made by the director, secretary, influential person or nominee for the notice under section 67AZH(2), the authority-- (a) still considers that the company has accumulated 30 demerit points in a period of 3 years; and (b) is not satisfied, in relation to demerit matters for which at least 30 demerit points accumulated-- (i) that the director, secretary, influential person or nominee was not in a position to influence the conduct of the company's affairs; or (ii) that the director, secretary, influential person or nominee exercised reasonable diligence to ensure that the demerit matters did not happen. (2) Subsection (3) also applies if there are no submissions for the notice under section 67AZH(2). (3) The authority must, by written notice given to the director, secretary, influential person or nominee inform the director, secretary, influential person or nominee-- (a) that the authority-- (i) still considers that the company has accumulated 30 demerit points in a period of 3 years; and (ii) is not satisfied, in relation to demerit matters for which at least 30 demerit points accumulated-- (A) that the director, secretary, influential person or nominee was not in a position to influence the conduct of the company's affairs; or (B) that the director, secretary, influential person or nominee exercised reasonable diligence to ensure that the demerit matters did not happen; and (b) that the director, secretary, influential person or nominee is taken not to be a fit and proper person for part 3, division 2, for the term calculated under section 67AZM and stated in the notice; and (c) of the director's, secretary's, influential person's or nominee's right to apply to the tribunal for a review of the authority's decision. Editor's note-- A director, secretary, influential person or nominee who is given notice that they are taken not to be a fit and proper person (a disqualified individual) for a stated term may have the authority's decision reviewed under section 86(1)(p). (4) A director, secretary, influential person or nominee given notice under subsection (3) is taken not to be a fit and proper person for part 3, division 2 as stated in the notice. 67AZL Notice by authority to company for which a disqualified individual is a director, secretary, influential person or nominee (1) This section applies if the authority considers that a company that is a licensee has an individual who is a disqualified individual as a director or secretary of, or an influential person or nominee for, the company. (2) The authority must give the company a written notice stating-- (a) particulars identifying the individual (the relevant individual) the authority considers is a director or secretary of, or an influential person or nominee for, the company; and Editor's note-- A company may have the authority's decision reviewed under section 86 (1)(q). (b) that the relevant individual must stop being a director, secretary, influential person or nominee within 28 days after the authority gives the individual the written notice; and (c) the authority must cancel the licensee's licence if the relevant individual does not stop being a director, secretary, influential person or nominee within the 28 days mentioned in paragraph (b). (3) The authority must cancel the company's licence by written notice given to the company if the relevant individual does not stop being a director, secretary, influential person or nominee within the 28 days mentioned in subsection (2)(b). (4) Section 49 does not apply to a cancellation under subsection (3). 67AZM Terms of disqualifications (1) This section states the term for which an individual given a notice under section 67AZF, 67AZG, 67AZJ or 67AZK is taken not to be a fit and proper person for part 3, division 2 (the term of disqualification). (2) Only demerit points accumulated after the commencement of this section may be taken into account in calculating the term of disqualification. (3) The term of disqualification for an individual given a notice for accumulating 30 demerit points in a period of 3 years for the first time is 3 years. (4) The term of disqualification for an individual given a notice for accumulating 30 demerit points in a period of 3 years a second time or subsequent time is the life of the individual. (5) A notice may be given to an individual a second time or subsequent time under section 67AZF, 67AZG, 67AZJ or 67AZK if-- (a) a notice for accumulating 30 demerit points in a period of 3 years has been given under 1 of the sections stating a disqualification of 3 years; and (b) the second or subsequent notice relates to 30 demerit points accumulated in a period of 3 years after the notice stating a disqualification of 3 years is given. (6) It is declared that, in deciding whether a notice for accumulating 30 demerit points in a period of 3 years has been given to an individual a second time or subsequent time, a notice given to an individual for the first time under section 67AZF, 67AZG, 67AZJ or 67AZK stating a disqualification of 3 years must be counted whether or not the individual has served the term of the disqualification. Example for subsections (5) and (6)-- An individual who is a licensee is given a notice under section 67AZF for accumulating 30 demerit points in a period of 3 years. The notice informs the individual that the individual is taken not to be a fit and proper person for part 3, division 2 for 3 years. After the notice under section 67AZF is given, the individual accumulates a further 30 demerit points in a period of 3 years that may include part of the term of disqualification. The authority may give the individual a second notice under section 67AZF for the further 30 demerit points whether or not the term of disqualification has ended. Also, it is the second notice under section 67AZF that informs the individual that the individual is taken not to be a fit and proper person for part 3, division 2 for the life of the individual. (7) However, in deciding whether a notice for accumulating 30 demerit points in a period of 3 years is given to an individual a second time or subsequent time, an earlier notice given to an individual under section 67AZF, 67AZG, 67AZJ or 67AZK must not be counted if-- (a) the earlier notice was given more than 10 years before the second or subsequent notice; or (b) the authority's decision under the earlier notice was reversed or annulled on review by the tribunal. (8) In this section a reference to accumulating 30 demerit points in a period of 3 years is-- (a) for an individual given notice under section 67AZF(3) or 67AZG (3)--a reference to the individual accumulating 30 demerit points in a period of 3 years; or (b) for an individual given notice under section 67AZJ(3) or 67AZK (3)--a reference to the company for which the individual was a director, secretary, influential person or nominee accumulating 30 demerit points in a period of 3 years. 67A Definitions for pt 4A In this part-- approved security provider means a financial institution that is an approved security provider under the Financial Accountability Act 2009. building contract see section 67AAA. carry out building work means-- (a) carry out building work personally; or (b) directly or indirectly, cause building work to be carried out; or (c) provide advisory, administrative, management or supervisory services for carrying out building work. commercial building contract means a building contract that is not a construction management trade contract or a subcontract. construction management trade contract means a building contract described in section 67B. contracted party, for a building contract, means the party to the contract who is to carry out the building work the subject of the contract. contracting party, for a building contract, means the party to the contract for whom the building work the subject of the contract is to be carried out. contract price, for a building contract, means the amount payable under the contract for carrying out the building work the subject of the contract, including, if the contract has been the subject of a variation, the contract as varied. payment claim see the Building and Construction Industry Payments Act 2004, schedule 2. principal means a person who is the contracting party for a building contract and who-- (a) is not a building contractor; or (b) is a building contractor, but did not enter into the building contract in the course of carrying on business as a building contractor. progress payment see the Building and Construction Industry Payments Act 2004, schedule 2. retention amount, for a building contract, means an amount described in section 67C. security, for a building contract, means something-- (a) given to, or for the direct or indirect benefit of, the contracting party for the contract by or for the contracted party for the contract; and (b) intended to secure, wholly or partly, the performance of the contract; and (c) in the form of either, or a combination of both, of the following-- (i) an amount, other than an amount held as a retention amount for the contract; (ii) 1 or more valuable instruments, whether or not exchanged for, or held instead of, a retention amount for the contract. subcontract means a building contract described in section 67D. valuable instrument means any of the following-- (a) a banker's undertaking; (b) a bond; (c) inscribed stock; (d) a guarantee policy; (e) an interest bearing deposit. variation, of a building contract, means an addition to, or an omission from, the building work the subject of the contract. 67AAA Meaning of building contract (1) For this part, a building contract means a contract or other arrangement for carrying out building work in Queensland but does not include-- (a) a domestic building contract; or (b) a contract exclusively for construction work that is not building work. (2) In this section-- construction work see the Building and Construction Industry Payments Act 2004, section 10. 67B Meaning of construction management trade contract (1) A building contract is a construction management trade contract if-- (a) the contracting party for the building contract is a principal; and (b) the contracted party for the building contract is the holder of a contractor's licence; and (c) the building work the subject of the building contract is part of a wider project of building work (the project) involving the principal in entering into 1 or more other building contracts, also as a principal, for the carrying out of other building work that is also part of the project; and (d) the contracted party is not the construction manager for the project. (2) For deciding whether a principal has entered into a building contract, it does not matter if the building contract was entered into on behalf of the principal, including by a construction manager. 67C Meaning of retention amount in pt 4A For this part, an amount is a retention amount for a building contract if-- (a) the amount is payable as part of the contract price under the building contract, but, under the contract, may be withheld from payment to the contracted party for the building contract-- (i) during the progress of the building work the subject of the contract; or (ii) for a period (a maintenance period) after the completion of the building work; or (iii) both during the progress of the building work and for a maintenance period; and (b) the purpose of withholding the amount is to give financial protection to the contracting party in relation to the need to correct defects in the building work, or otherwise to secure, wholly or partly, the performance of the contract. 67D Meaning of subcontract in pt 4A For this part, a building contract is a subcontract if-- (a) both the contracting party and the contracted party for the contract are building contractors; and (b) for the contract, the contracted party is a subcontractor for the contracting party; and (c) the building work the subject of the contract is the whole or a part of building work the subject of-- (i) another building contract, under which the contracting party mentioned in paragraphs (a) and (b) is the contracted party; or (ii) a domestic building contract between the contracting party mentioned in paragraphs (a) and (b) and a consumer. 67E Operation of pt 4A (1) Subject to any provision of this part that expressly provides that a building contract, or a provision of a building contract, is void, this part does not have effect to make void or voidable a building contract, or a provision of a building contract, even if-- (a) in entering into the building contract, or the building contract containing the provision, a party to the building contract commits an offence against this part; or (b) the building contract or the provision of the building contract is inconsistent with a condition to which the building contract is subject under this part. (2) However, if a building contract, or a provision of a building contract, is inconsistent with a provision (the Act provision) of this part applying to the building contract, the building contract, or the provision of the building contract, has effect only to the extent it is not inconsistent with the Act provision. (3) Without limiting subsection (2), a building contract is unenforceable against the contracted party for the contract to the extent that the contract provides for retention amounts or security in a way that is inconsistent with a condition to which the contract is subject under division 2. (4) This part-- (a) has effect in relation to a building contract despite anything in the building contract; and (b) applies to a building contract even if-- (i) the contract was entered into outside Queensland; or (ii) the parties to the contract have agreed that the law of Queensland does not apply to the contract or to a provision of the contract. 67F Suggested forms of contract The authority may prepare and publish suggested forms for building contracts. 67G Building contracts to be in writing (1) A building contractor commits an offence if-- (a) the building contractor enters into a building contract, whether as the contracting party or the contracted party for the contract; and (b) the building contract is not put into writing-- (i) if the reasonable cost of the building work the subject of the contract is more than $10000--before carrying out the building work is started; or (ii) if the reasonable cost of the building work the subject of the contract is $10000 or less--before carrying out the building work is finished. Maximum penalty--80 penalty units. (2) A building contractor commits an offence if-- (a) the building contractor enters into a building contract, whether as the contracting party or the contracted party for the contract; and (b) the reasonable cost of the building work the subject of the building contract is $10000 or less; and (c) after the building contract is entered into but before the building contract has been put into writing, the reasonable cost of the building work the subject of the building contract becomes more than $10000 because of a variation of the building contract, whether or not the variation is the first variation of the building contract; and (d) the building contract, incorporating all variations, is not put into writing-- (i) if no building work has been carried out under the contract--before carrying out building work under the contract is started; or (ii) otherwise--before there is further carrying out of building work under the contract. Maximum penalty--80 penalty units. (3) A building contractor commits an offence if-- (a) the building contractor enters into a building contract, whether as the contracting party or the contracted party for the contract; and (b) the building contract is put into writing; and (c) the building contract, in writing, does not comply with the formal requirements for a building contract stated in subsection (4). Maximum penalty--80 penalty units. (4) A building contract in writing complies with the formal requirements for a building contract if the contract states the following-- (a) the scope of the building work the subject of the contract; (b) when the building work is to be completed; (c) the amount to be paid for carrying out the building work or, if appropriate, how the amount to be paid for carrying out the building work is to be worked out; (d) the parties' agreement about retention amounts and securities to be held; (e) the name of the building contractor who is the contracted party for the building contract; (f) the licence number of the building contractor mentioned in paragraph (e), as it appears on the building contractor's licence card; (g) the address of the land where the building work is to be carried out. (5) This section does not apply to a building contractor who enters into a building contract as a principal. (6) If, in contravention of subsection (1) or (2), a building contract is not put into writing, a building contractor who is a party to the contract is taken not to commit an offence against the provision if-- (a) building work the subject of the contract must be carried out urgently; and (b) it is not reasonably practicable to enter into a written contract in the particular circumstances. Example-- a cyclone has caused considerable damage at a remote community, repairs are urgently needed, the parties to the building contract are not both present at the community and communications failure prevents transmission of written material between the parties 67I Directions given under building contracts (1) This section applies if under a building contract the contracting party for the contract, or another person authorised under the contract, may, without the agreement of the contracted party for the contract, give a direction to the contracted party. (2) Unless the building contract otherwise provides, a direction may initially be given other than in writing. (3) However, if a direction is given other than in writing, the contracted party-- (a) may ask for the direction to be given in writing; and (b) is not required to comply with the direction until it is given in writing. (4) If a direction is given other than in writing, the contracting party commits an offence if the direction is not given to the contracted party in writing within 3 business days after it was given other than in writing. Maximum penalty--80 penalty units. (5) In this section-- direction includes agreement, approval, authorisation, certificate, decision, demand, determination, explanation, instruction, notice, order, permission, rejection, request or requirement. 67J Set-offs under building contracts (1) The contracting party for a building contract may use a security or retention amount, in whole or in part, to obtain an amount owed under the contract, only if the contracting party has given notice in writing to the contracted party advising of the proposed use and of the amount owed. (2) The notice must be given within 28 days after the contracting party becomes aware, or ought reasonably to have become aware, of the contracting party's right to obtain the amount owed. (3) If, because of subsections (1) and (2), the contracting party is stopped from using a security or retention amount, the contracting party for the contract is not stopped from recovering the amount owed in another way. (4) This section does not apply if, under the contract-- (a) work has been taken out of the hands of the contracted party or the contract has been terminated; or (b) the security or retention amount is to be used to make a payment into court to satisfy a notice of claim of charge under the Subcontractors' Charges Act 1974. (5) In this section-- amount owed, under a building contract, means an amount that, under the contract, is a debt due from the contracted party for the contract to the contracting party for the contract because of circumstances associated with the contracted party's performance of the contract. use of security or retention amount includes the act of converting securities into cash where the securities are held as negotiable instruments. 67K Limits for retention amounts and securities for building contracts other than subcontracts (1) This section applies to a building contract if the contracting party under the contract is a principal. (2) The building contract is subject to a condition that at any time before, under the contract, practical completion of building work is reached, the total value of the following is to be not more than 5% of the contract price for the contract-- (a) all retention amounts for the contract that are being withheld; (b) all securities for the contract given and still held. (3) Subsection (2) does not apply to retention amounts or securities to the extent that the retention amounts or securities are for the financial protection of the contracting party, having regard to amounts paid by the contracting party that relate to something that has not yet been installed in accordance with the requirements of the contract. (4) The building contract is not subject to the condition mentioned in subsection (2) if-- (a) the contract-- (i) is in writing; and (ii) explains the condition; and (iii) expressly provides that the contract is not subject to the condition; and (b) the provision of the contract that expressly provides in the way mentioned in paragraph (a)(iii) is initialled by the parties to the contract. 67L Limits for retention amounts and securities for subcontracts (1) A subcontract is subject to a condition that, at any time before, under the contract, practical completion of building work is reached, the total value of the following is to be not more than 5% of the contract price for the subcontract-- (a) all retention amounts for the subcontract that are being withheld; (b) all securities for the subcontract given and still held. (2) Subsection (1) does not apply to retention amounts or securities to the extent that the retention amounts or securities are for the financial protection of the contracting party, having regard to amounts paid by the contracting party that relate to something that has not yet been installed in accordance with the requirements of the contract. 67M Limits on deductions for retention amounts (1) This section applies if-- (a) an amount (the relevant amount) is payable by the contracting party for a building contract to the contracted party for the building contract; and (b) the relevant amount relates to carrying out building work under the contract; and (c) the relevant amount, except for a retention amount for the building contract that is withheld, is paid to the contracted party. (2) The building contract is subject to a condition that the retention amount withheld is to be not more than 10% of the relevant amount. 67N Limits for retention amounts and securities for building contracts after practical completion (1) A building contract is subject to a condition that, at any time after, under the contract, practical completion of building work is reached, the total value of the following is to be not more than 2.5% of the contract price for the contract-- (a) all retention amounts for the contract that are being withheld; (b) all securities for the contract given and still held. (2) Subsection (1) does not apply to retention amounts or securities to the extent that the retention amounts or securities do not relate to the need to correct defects, identified in the defects liability period under the contract, in the building work under the contract. 67O Suspension of works (1) This section applies if-- (a) the contracting party for a building contract has not complied with an order of a court or of the tribunal given in favour of the contracted party for the contract in relation to an issue arising under the contract; or (b) all of the following apply-- (i) an amount is required to be paid to the contracted party for a building contract by a particular time; (ii) the full amount is not paid, other than solely because of the retention of an amount lawfully permitted to be retained; (iii) the requirement to pay the amount is not in dispute between the contracting party and the contracted party. (2) The contracted party may give the contracting party a written notice stating-- (a) details of the circumstance mentioned in subsection (1)(a), or of the circumstances mentioned in subsection (1)(b)(i) to (iii); and (b) that the contracted party intends to suspend building work the subject of the building contract if the order mentioned in subsection (1)(a) is not complied with, or if the amount mentioned in subsection (1)(b) is not paid, within the time stated in the written notice. (3) The time stated in the written notice must be not less than 7 days after the written notice is given. (4) If the order is not complied with, or the amount is not paid, within the time stated in the written notice, the contracted party may-- (a) give the contracting party a further written notice that the contracted party is suspending the building work immediately; and (b) suspend the building work immediately the further written notice is given. (5) If the contracted party suspends building work under subsection (4), the contracted party-- (a) is not in breach of the building contract; and (b) keeps the contracted party's rights under the contract, including any right to terminate the contract; and (c) may at any time lift the suspension, even if the order has not been complied with or the amount has not been paid. (6) Subsection (7) applies if-- (a) the order is complied with, or the amount is paid; and (b) the suspension is still in force; and (c) the contracting party gives written notice to the contracted party-- (i) advising the order has been complied with or the amount has been paid; and (ii) requiring the contracted party to recommence the building work under the contract. (7) The building contract is subject to a condition that the contracted party must recommence carrying out building work under the contract within 7 days after the contracted party receives the written notice mentioned in subsection (6)(c), or at a later time agreed to between the contracting party and the contracted party. 67P Late progress payments (1) This section applies if-- (a) the contracting party for a building contract is required to pay an amount (the progress amount) to the contracted party for the building contract; and (b) the progress amount is payable as the whole or a part of a progress payment; and (c) the time (the payment time) by which the progress amount is required to be paid has passed, and the progress amount, or a part of the progress amount, has not been paid. (2) For the period for which the progress amount, or the part of the progress amount, is still unpaid after the payment time, the contracting party is also required to pay the contracted party interest at the penalty rate, as applying from time to time, for each day the amount is unpaid. (3) In this section-- penalty rate means-- (a) the rate made up of the sum of the following-- (i) 10% a year; (ii) the rate comprising the annual rate, as published from time to time by the Reserve Bank of Australia, for 90 day bills; or (b) if the building contract provides for a higher rate of interest than the rate worked out under paragraph (a)--the higher rate. 67R Application of div 3 This division applies to a building contract if the building contract is a construction management trade contract or a subcontract. 67S Lodgement of security instead of retention amount or security in money form (1) This section applies if the contracted party for a building contract is under a lawful obligation to lodge a security in the form of an amount of money (the relevant amount). (2) The contracted party complies with the obligation if-- (a) the contracted party lodges with the contracting party a security, in the form of a government bond or a valuable instrument from an approved security provider, to take the place of the security in the form of money; and (b) the value of the security is equal to the relevant amount. (3) If the contracted party lodges a security in the form of a valuable instrument from an entity that is an approved security provider, and the entity stops being an approved security provider, the contracted party must, if asked by the contracting party, lodge a further security, in a form mentioned in subsection (2)(a), to take the place of the security in the form of money. 67T Lodgement of security to replace retention amount or security in money form (1) This section applies if, under a building contract, the contracting party is holding-- (a) an amount (the relevant amount) as a retention amount; or (b) a security in the form of an amount of money (also the relevant amount). (2) The building contract is subject to a condition that-- (a) the contracted party may lodge with the contracting party a security, in the form of a government bond or a valuable instrument from an approved security provider, to take the place of the retention amount or of the security in the form of money; and (b) on the lodging of the security, the contracting party must pay the contracted party the relevant amount. (3) However, subsection (2) applies only if the value of the security lodged is equal to the relevant amount. (4) If the contracted party lodges a security in the form of a valuable instrument from an entity that is an approved security provider, and the entity stops being an approved security provider, the contracted party must, if asked by the contracting party, lodge a further security, in a form mentioned in subsection (2)(a), to take the place of the retention amount or of the security in the form of money. 67U Void payment provision in construction management trade contract or subcontract A provision in a construction management trade contract or subcontract is void to the extent it provides for payment of a progress payment by a contracting party to a contracted party later than 25 business days after submission of a payment claim. 67V Offence of not warning that contract is construction management trade contract (1) The contracting party for a construction management trade contract commits an offence if-- (a) the construction management trade contract does not include a warning complying with subsection (2); and (b) the warning is not initialled by the contracted party for the contract. Maximum penalty--80 penalty units. (2) The warning-- (a) must be in a form prescribed by regulation; and (b) must be concerned with the possible dangers for the contracted party for the contract of entering into a construction management trade contract rather than a subcontract. 67W Void payment provision in commercial building contract A provision in a commercial building contract is void to the extent it provides for payment of a progress payment by a contracting party to a contracted party later than 15 business days after submission of a payment claim. 67X Statutory insurance scheme may be called Queensland Home Warranty Scheme The statutory insurance scheme may operate under the name, and be referred to as-- (a) the Queensland Home Warranty Scheme; or (b) if another name is prescribed by regulation, that other name. 67Y Protection of expressions associated with statutory insurance scheme (1) A person must not use a declared expression in connection with selling the right to participate in any warranty or insurance scheme unless-- (a) the scheme is that to which this Act relates; and (b) that person does so on behalf of the authority. (2) A person must not-- (a) use any variation of a declared expression; or (b) use any word (either alone or in conjunction with any other word) similar in sight or sound to a declared expression; in connection with selling the right to participate in any insurance or warranty scheme, being, in either case, a use likely to afford reasonable grounds for believing the scheme is or is associated with the scheme to which this Act relates, unless-- (c) the scheme in question is one to which this Act relates; and (d) that person does so on behalf of the authority. (3) A person who contravenes subsection (1) or (2) commits an offence against this Act. Maximum penalty--100 penalty units. (4) In this section-- declared expression means-- (a) the Queensland Home Warranty Scheme; or (b) if another name is prescribed by regulation under section 67X, that other name. 68 Payment of insurance premium for residential construction work (1) The appropriate insurance premium payable under section 68D for residential construction work must be paid to the authority by the following-- (a) if section 68B applies, the licensed contractor; (b) if section 68C applies, the construction manager who holds a contractor's licence of the relevant class. Maximum penalty--100 penalty units. (1A) The premium must be paid-- (a) if section 68B(a) applies, as soon as practicable after the contract is entered into with the consumer; or (b) if section 68C applies, as soon as practicable after the construction management contract is entered into with the principal; or (c) if section 68B(b) applies, before residential construction work is started. (2) An assessment manager must not, under the Integrated Planning Act 1997, issue a development approval for building work in respect of residential construction work unless-- (a) the assessment manager has written information from the authority showing that the appropriate insurance premium has been paid; or (b) the applicant produces satisfactory evidence that no insurance premium is payable. (3) A certificate of insurance issued by the authority in relation to residential construction work is conclusive evidence that the work is covered by a policy of insurance under the statutory insurance scheme. (4) A private certifier who is acting as an assessment manager must not contravene subsection (2). Maximum penalty--20 penalty units. 68A Multiple contracts for the same residential construction work (1) This section applies if a licensed contractor and a consumer enter into 2 or more separate contracts that-- (a) could be the subject of a single contract to carry out residential construction work; and (b) if they were the subject of a single contract, would be a contract to carry out residential construction work. (2) For this part, the separate contracts are taken to be a single contract for which the contract price is the sum of the contract prices for the separate contracts. Example of separate contracts-- A licensed contractor that manufactures and installs kitchens enters into one contract with a building owner for the manufacture of a kitchen and a second contract for its installation. 68B When insurance premium is payable by licensed contractor A licensed contractor who is to carry out residential construction work must pay the insurance premium for the work if-- (a) the work is carried out under a contract with a consumer and the work is not the subject of a construction management contract; or (b) the work is speculative residential construction work. 68C When insurance premium is payable by construction manager A construction manager who holds a contractor's licence of the relevant class must pay the insurance premium for residential construction work if a principal engages a construction manager under a construction management contract for the carrying out of the work. 68D Setting of insurance premiums for residential construction work (1) For residential construction work, the authority must state the insurance premium payable, or the way it is calculated, in the gazette. (2) Before stating the premium, or the way it is calculated, the authority must-- (a) have regard to the authority's obligation under section 26A; and (b) ensure insurance premiums are sufficient to meet the costs mentioned in section 26(3); and (c) have regard to any regulation made under section 26(4); and (d) obtain the Minister's approval. (3) The authority must review premiums payable at least once every 12 months. (4) A regulation may prescribe the way the value of residential construction work is calculated for stating the insurance premium payable. (5) Subsection (6) applies if a principal engages a construction manager under a construction management contract for the carrying out of residential construction work. (6) For calculating the insurance premium payable by the construction manager, the amount paid by the principal to the construction manager under the contract must be added to the value of the residential construction work. 69 Insurance of residential construction work (1) When the authority accepts the appropriate insurance premium in respect of residential construction work, the authority must issue a certificate of insurance in respect of the residential construction work. (2) A policy of insurance comes into force in the terms stated in the board's policies for the purpose-- (a) if a consumer enters into a contract for the performance of residential construction work, and-- (i) the contract bears the licence number of a licensed contractor and, under the licensed contractor's licence, the licensed contractor may enter into contracts with consumers to carry out residential construction work covered by the statutory insurance scheme; or (ii) the contract is with a licensed contractor and, under the licensed contractor's licence, the licensed contractor may enter into contracts with consumers to carry out residential construction work covered by the statutory insurance scheme; or (iii) the contract is with a person fraudulently claiming to hold a licence under which the person may enter into contracts with consumers to carry out residential construction work covered by the statutory insurance scheme; or (b) if the work is speculative residential construction work carried out by a licensed contractor and, under the contractor's licence the contractor may carry out residential construction work covered by the statutory insurance scheme. (3) Subsection (2) applies whether or not an insurance premium has been paid or a certificate of insurance has been issued. (4) The certificate of insurance given to a consumer need not state the terms of the policy of insurance, but a copy of the policy must be given to the consumer when the certificate of insurance is given to the consumer and the certificate of insurance must include a clear reference to the policy. (5) To remove doubt, it is declared that a policy of insurance under this section has effect according to its terms and a consumer can not avoid the consequences of a breach of a provision of the policy of insurance only because the policy of insurance forms part of a statutory insurance scheme. 69A Commencement of insurance cover (1) Subsection (2) applies to residential construction work carried out under a contract with a consumer where the work is not managed under a construction management contract. (2) A policy of insurance for the work, in the terms stated in the board's policies, comes into force on the earliest of the following to happen-- (a) when a licensed contractor pays the appropriate insurance premium for the work under section 68; (b) on the date a contract between a building contractor and a consumer is entered into for the work; (c) when a building contractor commences the work. (3) Subsection (4) applies to speculative residential construction work. (4) A policy of insurance for the work, in the terms stated in the board's policies, comes into force on the earlier of the following to happen-- (a) when the licensed contractor who is to carry out the work pays the appropriate insurance premium for the work under section 68; (b) when the contractor commences the work. (5) Subsection (6) applies to residential construction work if the work is managed by a construction manager under a construction management contract. (6) A policy of insurance for the work, in the terms stated in the board's policies, comes into force on the earlier of the following to happen-- (a) when the construction manager pays the appropriate insurance premium for the work under section 68; (b) when a building contractor commences the work. 70 Insurance claims (1) A person claiming to be entitled to indemnity under the insurance scheme must give notice of the claim to the authority in accordance with the regulations. (2) If the regulations do not state the way the notice of claim is to be given, a person who has applied to the authority under section 71A is taken to have given notice under this section. 70A Persons not entitled to indemnity under insurance scheme (1) A building contractor who carries out speculative residential construction work is not entitled to indemnity under the statutory insurance scheme for the work. (2) Where a person has entered into 1 or more building contracts, in force at the same time, to construct 3 or more living units, the person is not entitled to indemnity under the statutory insurance scheme for the work. (3) For subsection (2)-- (a) a single detached dwelling is taken to be 1 living unit; and (b) a residential unit is taken to be 1 living unit; and (c) a duplex is taken to be 2 living units. (4) A policy of insurance for residential construction work, in the terms stated in the board's policies, may include other circumstances in which a person is not entitled to indemnity under the statutory insurance scheme. (5) Nothing in this section affects the right of a subsequent owner of residential construction work mentioned in this section to claim indemnity under the statutory insurance scheme. 71 Recovery from building contractor etc. (1) If the authority makes any payment on a claim under the insurance scheme, the authority may recover the amount of the payment, as a debt, from the building contractor by whom the relevant residential construction work was, or was to be, carried out or any other person through whose fault the claim arose. (2) For subsection (1)-- (a) a building contractor by whom the relevant residential construction work was, or was to be, carried out is taken to include- - (i) a licensed contractor whose licence card is imprinted on the contract for carrying out the work; and (ii) a licensed contractor whose name, licence number and address are stated on the contract; and (iii) a licensed contractor whose name is stated on the contract for carrying out the work; and (iv) a licensed contractor whose name is stated on an insurance notification form for the work; and (v) a licensed contractor whose licence number is stated on the contract for carrying out the work; and (vi) a licensed contractor whose licence number is stated on an insurance notification form for the work; and (vii) a licensed contractor whose PIN was used for putting in place, for the work, insurance under the statutory insurance scheme; and (viii) a building contractor by whom the work was, or was to be, carried out; and (ix) a person who, for profit or reward, carried out the work; and (b) a person through whose fault the claim arose is taken to include a person who performed services for the work if the services were performed without proper care and skill. (3) The authority is subrogated, to the extent of any payment that the authority has made, or has undertaken to make, to the rights of a person to whom, or for whose benefit, the payment has been, or is to be, made in respect of the matter out of which the insurance claim arose. (4) In a proceeding brought by the authority under subsection (1) against a licensed contractor mentioned in subsection (2)(a)(i), it is a defence for the licensed contractor to prove that-- (a) the licensed contractor's licence card was imprinted on the contract for carrying out the work without the licensed contractor's authority; and (b) the licensed contractor took all reasonable steps to ensure that the licence card was imprinted on contracts only with the licensed contractor's authority. (5) In a proceeding brought by the authority under subsection (1) against a licensed contractor mentioned in subsection (2)(a)(ii), it is a defence for the licensed contractor to prove that-- (a) the licensed contractor's name, licence number and address were stated on the contract for carrying out the work without the licensed contractor's authority; and (b) the licensed contractor took all reasonable steps to ensure that the licensed contractor's name, licence number and address were stated in contracts only with the licensed contractor's authority. (6) In a proceeding brought by the authority under subsection (1) against a licensed contractor mentioned in subsection (2)(a)(iii), (iv), (v), (vi) or (vii), it is a defence for the licensed contractor to prove-- (a) for a licensed contractor mentioned in subsection (2)(a)(iii)-- that the licensed contractor's name was stated on the contract for carrying out the work without the licensed contractor's authority; and (b) for a licensed contractor mentioned in subsection (2)(a)(iv)-- that the licensed contractor's name was stated on the insurance notification form for the work without the licensed contractor's authority; and (c) for a licensed contractor mentioned in subsection (2)(a)(v)--that the licensed contractor's licence number was stated on the contract for carrying out the work without the licensed contractor's authority; and (d) for a licensed contractor mentioned in subsection (2)(a)(vi)-- that the licensed contractor's licence number was stated on the insurance notification form for the work without the licensed contractor's authority; and (e) for a licensed contractor mentioned in subsection (2)(a)(vii)-- (i) that the licensed contractor's PIN was used for putting in place, for the work, insurance under the statutory insurance scheme without the licensed contractor's authority; and (ii) that the licensed contractor took all reasonable steps to ensure the licensed contractor's PIN was kept and used in accordance with the authority's requirements for the keeping and use of the PIN. 71AA Cancellation of policy of insurance (1) A policy of insurance for residential construction work taken out by a licensed contractor may be cancelled by the contractor if-- (a) the contractor asks the authority in writing to cancel the policy; and (b) the contract between the contractor and the consumer has ended; and (c) the deposit under the contract has been refunded, less any amounts that may be lawfully deducted from the deposit; and (d) the work insured under the policy has not started; and (e) not more than 1 year has elapsed from the day the contract was entered into. (2) A policy of insurance for residential construction work taken out by a construction manager may be cancelled by the construction manager if-- (a) the construction manager asks the authority in writing to cancel the policy; and (b) the relevant construction management contract and all the construction management trade contracts for the work have ended; and (c) deposits paid under the relevant construction management contract and all the construction management trade contracts have been refunded, less any amounts that may be lawfully deducted from the deposits; and (d) the work insured under the policy has not started; and (e) not more than 1 year has elapsed from the day the first construction management trade contract for the work was entered into. (3) On cancellation of the policy, the authority must refund the insurance premium paid for the work to the licensed contractor or construction manager or to a person nominated in writing by the contractor or manager. (4) To remove doubt it is declared that, despite section 68(3), a person may not claim to be entitled to indemnity under a policy of insurance cancelled under this section. 71A Dispute resolution before rectification of building work ordered (1) This section applies to a consumer who wants the authority to consider whether to direct rectification of building work under section 72. (2) The consumer must apply in writing to the authority stating-- (a) the name of the person who carried out the building work; and (b) details of the building work the consumer considers is defective or incomplete; and (c) other details the authority reasonably requires to consider the matter. (3) The application must be accompanied by the fee prescribed under a regulation. (4) Before it considers whether building work is defective or incomplete, the authority may require the consumer to comply with a process established by the authority to attempt to resolve the matter with the person who carried out the building work. (5) For this section, the person who carried out the building work is taken to include a person mentioned in section 72(5). 72 Power to require rectification of building work (1) If the authority is of the opinion that building work is defective or incomplete, the authority may direct the person who carried out the building work to rectify the building work within the period stated in the direction. (2) In deciding whether to give a direction under subsection (1), the authority may take into consideration all the circumstances it considers are reasonably relevant, and in particular, is not limited to a consideration of the terms of, including the terms of any warranties included in, the contract for carrying out the building work. (3) The period stated in the direction must be at least 28 days unless the authority is satisfied that, if the direction is not required to be complied with within a shorter period-- (a) a substantial loss will be incurred by, or a significant hazard will be caused to the health or safety of, a person because of the defective building work; or (b) the defective building work will cause a significant hazard to public safety or the environment generally. (4) Subject to subsection (3), the period stated in the direction must be a period the authority considers to be appropriate in the circumstances. (5) For subsection (1), the person who carried out the building work is taken to include-- (a) a licensed contractor whose licence card is imprinted on the contract for carrying out the building work; and (b) a licensed contractor whose name, licence number and address are stated on the contract; and (ba) a licensed contractor whose name is stated on the contract for carrying out the building work; and (bb) a licensed contractor whose name is stated on an insurance notification form for the building work; and (bc) a licensed contractor whose licence number is stated on the contract for carrying out the building work; and (bd) a licensed contractor whose licence number is stated on an insurance notification form for the building work; and (be) a licensed contractor whose PIN was used for putting in place, for the building work, insurance under the statutory insurance scheme; and (c) a building contractor by whom the building work was carried out; and (d) a person who, for profit or reward, carried out the building work; and (e) a person who, under the Domestic Building Contracts Act 2000, is a building contractor under a domestic building contract who managed the carrying out of the building work; and (f) a construction manager engaged under a construction management contract to provide building work services for the building work; and (g) a principal who was the contracting party for a building contract for building work for a building, or part of a building, intended for sale if-- (i) the building, or part of a building, is not, and has never been, the principal place of residence of the principal; and (ii) the principal engages a building contractor or a construction manager to carry out the building work in a way, or using materials, likely to result in the work being defective or incomplete; and (iii) the principal knew, or ought to have known, that the way the work was to be carried out, or the materials to be used, was likely to result in the work being defective or incomplete; and Example where principal knew that work or materials were likely to result in defective or incomplete building work-- A principal may know materials are likely to result in work being defective because of advice received from a building contractor or construction manager. (h) a person who was the nominee for a licensed contractor that is a company, for work carried out by the company while the person was the company's nominee. (5AA) A direction to rectify may be given to more than 1 person for the same building work. (5A) In subsection (2), a reference to a contract for carrying out building work includes a reference to a domestic building contract for managing the carrying out of building work. (6) If in order to rectify building work it is necessary to do so, the direction may require that a building or part of a building be demolished and building work be recommenced. (7) If a direction is given under this section to a person who is not currently licensed to carry out the required work, the person must have the work carried out by a licensed contractor. (8) A direction cannot be given under this section more than 6 years and 3 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the authority, that there is in the circumstances of a particular case sufficient reason for extending the time for giving a direction and extends the time accordingly. (9) The fact that a direction is given under this section does not prevent disciplinary action in respect of the defective or incomplete building work. (10) A person who fails to rectify building work as required by a direction under this section is guilty of an offence. Maximum penalty--250 penalty units. (11) For the purposes of subsection (5)(c) and (d)-- (a) a person carries out building work whether the person-- (i) carries it out personally; or (ii) directly or indirectly causes it to be carried out; and (b) a person is taken to carry out building work if the person provides advisory services, administration services, management services or supervisory services for the work. (12) In a prosecution for an offence against subsection (10), or in a proceeding for taking disciplinary action on the ground that a licensee has failed to comply with a direction to rectify building work, it is a defence for a licensed contractor mentioned in subsection (5)(a) to prove that-- (a) the licensed contractor's licence card was imprinted on the contract for carrying out the building work without the contractor's authority; and (b) the licensed contractor took all reasonable steps to ensure that the licence card was imprinted on contracts only with the licensed contractor's authority. (13) In a prosecution for an offence against subsection (10), or in a proceeding for taking disciplinary action on the ground that a licensee has failed to comply with a direction to rectify building work, it is a defence for a licensed contractor mentioned in subsection (5)(b) to prove that-- (a) the licensed contractor's name, licence number and address were stated on the contract for carrying out the building work without the licensed contractor's authority; and (b) the licensed contractor took all reasonable steps to ensure that the licensed contractor's name, licence number and address were stated in contracts only with the licensed contractor's authority. (13A) In a prosecution for an offence against subsection (10), or in a proceeding for taking disciplinary action on the ground that a licensee has failed to comply with a direction to rectify building work-- (a) it is a defence for a licensed contractor mentioned in subsection (5)(ba) to prove that the licensed contractor's name was stated on the contract for carrying out the building work without the licensed contractor's authority; and (b) it is a defence for a licensed contractor mentioned in subsection (5)(bb) to prove that the licensed contractor's name was stated on the insurance notification form for the building work without the licensed contractor's authority; and (c) it is a defence for a licensed contractor mentioned in subsection (5)(bc) to prove that the licensed contractor's licence number was stated on the contract for carrying out the building work without the licensed contractor's authority; and (d) it is a defence for a licensed contractor mentioned in subsection (5)(bd) to prove that the licensed contractor's licence number was stated on the insurance notification form for the building work without the licensed contractor's authority; and (e) it is a defence for a licensed contractor mentioned in subsection (5)(be) to prove that-- (i) the licensed contractor's PIN was used for putting in place, for the building work, insurance under the statutory insurance scheme without the licensed contractor's authority; and (ii) the licensed contractor took all reasonable steps to ensure the licensed contractor's PIN was kept and used in accordance with the authority's requirements for the keeping and use of the PIN. (14) The authority is not required to give a direction under this section to a person who carried out building work for the rectification of the building work if the authority is satisfied that, in the circumstances, it would be unfair to the person to give the direction. Example for subsection (14)-- The authority might decide not to give a direction for the rectification of building work because of the amount payable but unpaid under the contract for carrying out the building work. (15) A direction given under this section need not be complied with if-- (a) a proceeding for a review of the authority's decision is started in the tribunal; and (b) the tribunal orders a stay of the decision. 73 Panels of licensed contractors for rectification work (1) The authority may establish panels of licensed contractors who express interest in tendering for rectification work. (2) The panels will be established in relation to-- (a) the areas of the State in which the work is to be carried out; and (b) the nature of the work involved. (3) The authority may advertise, from time to time, inviting expressions of interest from licensed contractors who wish to be included on the appropriate panel for the area or areas in which they carry on business. (4) A licensed contractor who by notice in writing to the authority expresses interest in being included on a panel for a particular area may, if entitled to carry out building work of the relevant class, be included on the panel. (5) The authority may remove the name of a contractor from a panel for any good reason. 74 Tenders for rectification work (1) If rectification work in respect of residential construction work is required under this Act and the person required to carry out the work does not carry it out, or have it carried out, within the time allowed by the direction, the authority must seek tenders for carrying out the work. (2) The authority must also seek tenders for carrying out building work if the authority-- (a) is of the opinion that the building work is defective or incomplete; but (b) has decided not to give a direction under section 72 for the rectification of the building work. (3) The authority may accept any tender that it considers appropriate, irrespective whether the tender was for the lowest cost. (4) Tenders for carrying out the building work must be sought from the number of licensed contractors considered by the authority to be reasonable in the circumstances. (5) A licensed contractor from whom a tender may be sought must be-- (a) a licensed contractor whose name is included on an appropriate panel; or (b) a licensed contractor whose name is not included on an appropriate panel, if the authority is satisfied it would be in the best interests of the efficient rectification of the building work if the licensed contractor were to provide a tender. (6) The authority may authorise the person for whom the building work requiring rectification was, or was to be, carried out to act for the authority in seeking the necessary tenders. (7) The authority may only have work carried out under this section to the extent that the cost of the work is covered by a payment to be made under the statutory insurance scheme in relation to the defective or incomplete work. 75 Tribunal work defined (1) The following is tribunal work-- (a) the erection or construction of a building; (b) the renovation, alteration, extension, improvement or repair of a building; (c) the provision of electrical work, water supply, sewerage or drainage or other like services for a building; (d) the demolition, removal or relocation of a building; (e) any site work (including the construction of retaining structures, driveways, landscaping and the construction of a swimming pool) related to tribunal work of a kind mentioned in paragraphs (a) to (d); (f) the preparation of plans, specifications or bills of quantity for the carrying out of tribunal work; (fa) fire protection work; (g) the inspection of a completed building; (h) subject to subsection (3), work prescribed under a regulation. (2) To remove doubt, it is declared that reviewable domestic work is tribunal work. (3) A person carries out tribunal work whether the person carries it out personally, or directly or indirectly causes it to be carried out. (4) A person is taken to carry out tribunal work if the person provides advisory services, administration services, management services or supervisory services relating to the tribunal work. (5) A person undertakes to carry out tribunal work if the person enters into a contract to carry it out or submits a tender or makes an offer to carry it out. 76 What is not tribunal work (1) The following is not tribunal work-- (a) the construction, extension, repair or replacement of a water reticulation system, sewerage system or storm water drain, outside the boundaries of private property; (b) the building or maintenance of a road as defined under the Land Act 1994; (c) the construction, maintenance or repair of a bridge, other than a bridge on private property; (d) the construction, maintenance or repair of railway tracks, signals or associated structures, unless the structures are buildings for residential purposes, or are storage or service facilities; (e) the construction, maintenance or repair of airport runways, taxiways and aprons; (f) the construction, maintenance or repair of ports or ports infrastructure, unless the structures are buildings for residential purposes, or are storage or service facilities; (g) the construction, maintenance or repair of a dam; (h) the construction, maintenance or repair of communications installations performed for a public company or public body engaged in radio or television broadcasting or in some other form of communications business or undertaking; (i) the installation of manufacturing equipment or equipment for hoisting, conveying or transporting materials or products (including primary produce), other than the installation of fixed structures providing shelter for the equipment; (j) construction work in mining; (k) work consisting of monumental masonry, sculpture, or the erection or construction of statues, fountains or other works of art, other than work affecting the way in which a building is constructed; (l) tribunal work carried out by the State for the State or for an entity representing the State; (m) tribunal work carried out by a local government for a local government, the State or an entity representing a local government or the State; (n) tribunal work carried out outside Queensland. (2) For subsection (1)(l), tribunal work is not carried out by the State if the work is carried out for the State by an independent contractor. (3) For subsection (1)(m), tribunal work is not carried out by a local government if the work is carried out for the local government by an independent contractor. 77 Tribunal may decide building dispute (1) A person involved in a building dispute may apply to the tribunal to have the tribunal decide the dispute. (2) Without limiting the tribunal's powers to resolve the dispute, the tribunal may exercise 1 or more of the following powers-- (a) order the payment of an amount found to be owing by 1 party to another; (b) order relief from payment of an amount claimed by 1 party from another; (c) award damages, and interest on the damages at the rate, and calculated in the way, prescribed under a regulation; (d) order restitution; (e) declare any misleading, deceptive or otherwise unjust contractual term to be of no effect, or otherwise vary a contract to avoid injustice; (f) avoid a policy of insurance under the statutory insurance scheme; (g) order rectification or completion of defective or incomplete tribunal work; (h) award costs. 78 When major commercial building dispute may be heard by tribunal A major commercial building dispute may be decided by the tribunal only if the tribunal is satisfied all parties to the dispute consent to it doing so. 79 Procedure to decide whether all parties consent (1) An application to start a proceeding for a major commercial building dispute must be accompanied by the written consent of all parties to the dispute. (2) The written consent must include an acknowledgement by the consenting party that the consent can not be withdrawn. (3) The tribunal may, before another step is taken in the proceeding, conduct a pre-hearing conference to decide whether there is another person who should be joined as a party to the dispute. (4) If the tribunal decides that there is another person who should be joined as a party to the dispute, the tribunal-- (a) must give the consenting parties an opportunity to obtain the written consent of the other person; and (b) may hear the dispute only if the other person consents. (5) If the consenting parties obtain the consent of the other person, the tribunal must join the other person as a party to the dispute. (6) The consent of all parties to the dispute must be obtained before another step is taken in the proceeding. 80 Procedure if another party discovered (1) This section applies if the tribunal becomes aware that there is another person who should be joined as a party to a major commercial building dispute (other than at a pre-hearing conference under section 79). (2) The tribunal does not have jurisdiction to decide the dispute. (3) The tribunal must order that the proceeding be removed to a court under section 94(3). 81 Consent may not be withdrawn A party that gives written consent to have a major commercial building dispute heard and decided by the tribunal can not withdraw the consent. 82 Tribunal may make interim order (1) Before finally deciding a building dispute, the tribunal may make 1 or more of the interim orders mentioned in subsections (2) to (4). (2) The tribunal may make an order requiring a building contractor to rectify or complete defined tribunal work, or tribunal work to be defined by a process identified in the order, that is the subject of the dispute. (3) The tribunal may make an order requiring a building owner, in relation to the amount claimed to be owing from the building owner to a building contractor, to do 1 or more of the following-- (a) pay an amount decided by the tribunal into the tribunal's trust account to be held until the tribunal is satisfied that the building contractor has completed the tribunal work; (b) provide security of a type and for an amount decided by the tribunal until the tribunal is satisfied that the building contractor has completed the tribunal work; (c) pay an amount decided by the tribunal to the building contractor. (4) The tribunal may make an order requiring a person, in relation to the amount claimed to be owing from the person to a subcontractor, to do 1 or more of the following-- (a) pay an amount decided by the tribunal into the tribunal's trust account to be held until the tribunal is satisfied that the subcontractor has completed the tribunal work; (b) provide security of a type and for an amount decided by the tribunal until the tribunal is satisfied that the subcontractor has completed the tribunal work; (c) pay an amount decided by the tribunal to the subcontractor. (5) On being satisfied the tribunal work has been completed the tribunal must order-- (a) the amount paid into the tribunal's trust account under subsection (3)(a) or (4)(a) be paid to the building contractor or subcontractor; or (b) the application of the security in satisfaction of the amount decided by the tribunal under subsection (3)(b) or (4)(b) in favour of the building contractor or subcontractor. (6) However for subsection (5)(b), the tribunal may order that the security be discharged if an amount equal to the amount of the security is paid to the building contractor or subcontractor. 83 Proceeding in tribunal stops action by authority (1) If a proceeding about a building dispute is started in or removed from a court to the tribunal-- (a) the tribunal is to have the management of the dispute; and (b) the authority must not act in relation to the dispute except as allowed or required by section 84. (2) To remove doubt, it is declared that nothing in this section affects a direction that tribunal work be rectified or completed issued by the authority before the proceeding is started or removed. 84 Tribunal to decide about rectification or completion work (1) This section applies if-- (a) a proceeding about a building dispute is started in, or removed from a court to, the tribunal; and (b) before the proceeding is started or removed, the authority has acted in relation to the building dispute but has not issued a direction that tribunal work be rectified or completed. (2) The authority may apply to the tribunal for an order that tribunal work be rectified or completed if the authority considers the tribunal work needs to be urgently rectified or completed. (3) The application must be heard by the tribunal as an expedited hearing. (4) Whether or not the authority applies under subsection (2), the authority may also apply to the tribunal for a decision about whether it would have been appropriate for the authority to have issued a direction to rectify or complete tribunal work if section 83 had not stopped the authority from acting further in relation to the dispute. (5) The tribunal must make a decision under subsection (4) if it hears the proceeding mentioned in subsection (1). 85 Tribunal may hear dispute while contract still in operation The tribunal may make an order to resolve a building dispute even though the contract under which the dispute arose has not been terminated or finalised. 86 Reviewable decisions (1) The tribunal may review the following decisions of the authority-- (a) a decision to refuse an application for a licence or a permit; (aa) a decision to refuse an application for renewal of a licence; (b) a decision to impose or vary a condition of a licence; (c) a decision to suspend or cancel a licence or permit; (d) a decision that there are reasonable grounds for concern that a licensee does not satisfy the relevant financial requirements for a licence; (e) a decision to direct or not to direct rectification or completion of tribunal work; (f) a decision that tribunal work undertaken at the direction of the authority is or is not of a satisfactory standard; (g) a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work; (h) a decision to disallow a claim under the statutory insurance scheme wholly or in part; (i) a decision that a domestic building contract has been validly terminated having the consequence of allowing a claim for non- completion under the statutory insurance scheme; (j) a decision not to categorise an individual as a permitted individual for a relevant event; (k) a decision under section 56AF or 56AG that-- (i) a person is an excluded individual or excluded company; or (ii) an individual is still a director or secretary of, or an influential person for, a company; (l) a decision under section 66 or 67 that a person is a convicted company officer; (m) a decision under section 67AA that a company that is a licensee has an individual who is a convicted company officer as a director or secretary of, or an influential person or nominee for, the company; (n) a decision under section 67AH, 67AI, 67AL or 67AM that an individual is a banned individual for a stated term; (o) a decision under section 67AN that a company that is a licensee has an individual who is a banned individual as a director or secretary of, or an influential person or nominee for, the company; (p) a decision under section 67AZF, 67AZG, 67AZJ or 67AZK that an individual is a disqualified individual for a stated term; (q) a decision under section 67AZL that a company that is a licensee has an individual who is a disqualified individual as a director or secretary of, or an influential person or nominee for, the company. (2) The tribunal must not review the following decisions of the authority-- (a) a decision to recover an amount under section 71; (b) a decision to direct rectification or completion of tribunal work by a building contractor and any finding by the authority in arriving at the decision if-- (i) 28 days have elapsed from the date the direction to rectify or complete was served on the building contractor and the contractor has not, within that time, applied to the tribunal for a review of the decision; and (ii) the authority has-- (A) started a disciplinary proceeding against the building contractor by an application under division 4; or (B) served a notice on the building contractor advising a claim under the statutory insurance scheme has been approved in relation to tribunal work stated in the direction; or (C) started a prosecution, or served an infringement notice, for an offence against section 72(10); (c) a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work if 28 days have elapsed since the decision was served on the building contractor and the contractor has not, within that time, applied to the tribunal for a review of the decision. (3) For subsection (1)(n), if the tribunal, after reviewing the matters mentioned in section 67AH(1)(a) and (b), 67AI(1)(a) and (b), 67AL(1)(a) and (b) or 67AM(1)(a) and (b), is satisfied that an individual is a banned individual, it may not vary the term of ban applying to the individual if it has been correctly calculated under section 67AO. (4) For subsection (1)(p), if the tribunal, after reviewing the matters mentioned in section 67AZF(1), 67AZG(1), 67AZJ(1)(a) and (b) or 67AZK(1)(a) and (b), is satisfied that an individual is a disqualified individual, it may not vary the term of disqualification applying to the individual if it has been correctly calculated under section 67AZM. 87 Application for review A person affected by a reviewable decision of the authority may apply to the tribunal for a review of the decision. 88 Tribunal has jurisdiction to conduct disciplinary proceeding The authority may apply to the tribunal to conduct a proceeding to decide whether proper grounds exist for taking disciplinary action against a person under this division. 89 Proper grounds for disciplinary action against a licensee For section 88, proper grounds exist for taking disciplinary action against a licensee if-- (a) the licensee contravenes a requirement imposed under this Act or the Domestic Building Contracts Act 2000; or (b) the licensee is convicted of an indictable offence; or (c) if a licensee is a corporation--a director or other person who is in a position to control or substantially influence the conduct of the corporation's affairs is not a fit and proper person to exercise that control or influence; or (d) the licensee is carrying on business under the licence in partnership with a person who is not a fit and proper person to have an interest in the business; or (e) the licensee is bankrupt or insolvent; or (f) the licensee has committed an offence involving fraud or dishonesty relating to the business carried on under the licence; or (g) the licensee knowingly helps a person to perform tribunal work in contravention of this Act or the Domestic Building Contracts Act 2000; or (h) the licensee contravenes or is taken to have contravened the Fair Trading Act 1989 in relation to tribunal work carried out under the licence; or (i) the licensee is negligent or incompetent in carrying out tribunal work under the licence; or (j) the licensee fails to comply with a direction of the authority to rectify or complete tribunal work; or (k) the licensee contravenes a condition of the licence; or (l) the licensee owes an amount to the authority and fails to comply with a demand by the authority to pay the amount; or (m) the licensee fails to comply with an order of the tribunal. 90 Proper grounds for disciplinary action against person not a licensee (1) For section 88, proper grounds exist for taking disciplinary action against a person who is not a licensee if the person-- (a) carries out, or undertakes to carry out, tribunal work for which a licence is required without holding a licence of the appropriate class; or (b) has committed an offence involving fraud or dishonesty relating to the performance of tribunal work; or (c) contravenes or is taken to have contravened the Fair Trading Act 1989 in relation to the performance of tribunal work; or (d) is negligent or incompetent in carrying out tribunal work for which a licence is required; or (e) fails to comply with a direction of the authority to rectify or complete tribunal work. (2) In this section-- undertakes to carry out tribunal work means enters into a contract to carry out tribunal work or submits a tender or makes an offer to carry out tribunal work, unless the contract, submission or offer is conditional on the person obtaining a licence of the appropriate class. 91 Orders for disciplinary action If the tribunal decides that proper grounds exist for taking disciplinary action against a person, the tribunal may, in relation to defective or incomplete tribunal work carried out by the person for a building owner-- (a) make an order that the person rectify or complete the work; or (b) if the person is not appropriately licensed to rectify or complete the work--make an order that the person have the work rectified or completed by another person who is appropriately licensed; or (c) make an order that the person pay the building owner an amount sufficient to rectify or complete the work. 92 Tribunal may conduct public examination The tribunal may, on application by the authority, conduct a public examination-- (a) that investigates the conduct or competence of a person who has carried out tribunal work or undertaken to carry out tribunal work; or (b) that investigates whether a person-- (i) meets the financial requirements imposed for the licence held by the person; or (ii) has the qualifications and experience required for the licence held by the person; or (iii) if the person is the nominee for a corporation that holds a licence--has the qualifications and experience required for the licence held by the corporation; or (iv) is a fit and proper person to hold a licence; or (v) if the person exercises control over a corporation that holds a licence--is a fit and proper person to exercise control over the corporation; or (vi) has breached a condition imposed on the person's licence. 93 Decisions about debts arising from statutory insurance scheme (1) The authority may recover a debt under section 71 by application to the tribunal under this section. (2) The tribunal may exercise 1 or more of the following powers-- (a) order the payment of an amount the tribunal has found to be owing to the authority; (b) order the payment of interest on the amount mentioned in paragraph (a); (c) order the payment of costs; (d) order that amounts mentioned in paragraphs (a), (b) and (c) be paid by instalments or another way directed by the tribunal. 94 Transfer of proceedings between tribunal and the courts If proceedings relating to a major commercial building dispute are brought in a court, the court may order that the proceeding be transferred to the tribunal only if all parties to the dispute apply for the order. 95 Expedited hearing of domestic building disputes (1) The tribunal must decide a minor domestic building dispute at an expedited hearing if the dispute has been to mediation but has not been settled, unless the tribunal considers the dispute is too complex to be properly dealt with at an expedited hearing. Example of too complex to be properly dealt with-- The dispute involves complex legal and contractual issues for which the tribunal is unaware of any authoritative precedent. (2) The tribunal may decide a domestic building dispute that is not a minor domestic building dispute at an expedited hearing only if-- (a) all parties to the proceeding apply to the tribunal for the matter to be dealt with at an expedited hearing; and (b) the tribunal considers it appropriate for the dispute to be decided at an expedited hearing. 96 Certain minor commercial building disputes may be expedited (1) The tribunal may conduct an expedited hearing for a minor commercial building dispute between a subcontractor and another person if-- (a) neither the claim nor any counterclaim exceeds $10000; and (b) the dispute relates only to a claim for moneys owing by a person to the subcontractor for tribunal work completed by the subcontractor under a written contract; and (c) the subcontractor files an application for an expedited hearing, a copy of the contract and an affidavit by the subcontractor stating that-- (i) the tribunal work under the contract has been completed by the subcontractor to the standard required under the contract; and (ii) a claim for payment payable under the contract has been given to the other person by the subcontractor; and (iii) the amount claimed by the subcontractor has not been paid by the other person; and (iv) no complaint about the tribunal work under the contract has been made to the subcontractor by the other person. (2) A hearing under this section may proceed only if the subcontractor has given the other person a copy of the application and all documents filed by the subcontractor at least 5 days before the hearing. 97 Judicial Review excluded for minor domestic building disputes (1) The exercise by the tribunal of its powers in relation to a proceeding for a minor domestic building dispute is not subject to the Judicial Review Act 1991. (2) Subsection (1) does not apply if-- (a) the tribunal had or has no jurisdiction under the Act to hear and decide the proceeding; or (b) a breach of the rules of natural justice happened in relation to a party to the proceeding. 98 Definitions for pt 8 In this part-- developer register see section 103B. licensee register see section 99. owner-builder register see section 103. 99 Licensee register (1) A register of licensees (the licensee register) must be kept by the authority. (2) The register must include the following particulars in relation to each licensee-- (a) the licensee's full name, business address and licence number; (b) if the licensee is a company--the full name and business address of the nominee and each director; (c) the class of licence held by the licensee and any conditions to which the licence is, or has been, subject; (d) any particulars required by regulation. (3) The register must also contain against the name of each licensee a note of- - (a) each direction of the authority requiring the licensee to rectify building work; and (b) each order made against the licensee by the tribunal under section 107 of the Tribunal Act; and (c) any decision of the tribunal under section 84 that it would have been appropriate for the authority to issue a direction requiring the licensee to rectify or complete building work; and (d) each time the licensee is convicted of an offence against this Act or the Domestic Building Contracts Act 2000 and the provision of the Act that was contravened; and (e) each offence for which the licensee has for this Act or the Domestic Building Contracts Act 2000 been served with an infringement notice and-- (i) the licensee has paid the fine in full or in part; or (ii) a default certificate has been registered for the infringement notice; and (f) any demerit points allocated to the licensee, the demerit matters for which they were allocated and the dates the points took effect; and (g) any cancellation or suspension of the licensee's licence including the circumstances that led to the cancellation or suspension; and (h) if the licensee has been a permanently excluded individual, an excluded individual, a banned individual or a disqualified individual--the details of the circumstances that led to the exclusion, ban or disqualification; and (i) if the licensee is a company that has a director, secretary, influential person or nominee that became a permanently excluded individual, an excluded individual, a banned individual or a disqualified individual in the last 10 years--the details of the circumstances that led to the exclusion, ban or disqualification. (4) A reference in subsection (3) to something happening in relation to a person who is a licensee includes something happening-- (a) in relation to the person before the person became a licensee; and (b) before the commencement of this section. (5) In this section-- licensee includes a person who was previously a licensee. 100 When information may be included in the licensee register (1) No information may be included in the register under section 99(3)(a) until-- (a) all periods for seeking a review of the direction, and for making any appeal arising out of review of the direction, have ended; and (b) any review or appeal about the direction is finally decided or is not proceeded with. (2) No information may be included in the register under section 99(3)(b) or (c) until-- (a) all periods for making an appeal arising out of the tribunal's order or decision have ended; and (b) any appeal about the order or decision is finally decided or is not proceeded with. (3) No information may be included in the register under section 99(3)(d) until-- (a) all periods for making an appeal arising out of the conviction have ended; and (b) any appeal about the conviction is finally decided or is not proceeded with. (4) No information may be included in the register under section 99(3)(e)(ii) if a licensee has applied for cancellation of the enforcement order and the application for cancellation has not been finally decided. 101 Licensees must advise change of circumstances (1) If circumstances change so that the particulars recorded in the licensee register in relation to a particular licensee no longer reflect the current position, the licensee must, within 14 days after the date of the change, give the authority particulars of the change. (2) Particulars may be given under subsection (1)-- (a) by written notice; or (b) in another way approved by the authority, and advised generally to licensees, as a suitable way for advising particulars to the authority. 102 When notes must be removed from the licensee register (1) A note made in the register under section 99(3) must be taken off-- (a) for information mentioned in section 99(3)(g) and (h), 10 years after it is made; or (b) for information mentioned in section 99(3)(f), 3 years after it is made; or (c) for information mentioned in section 99(3)(i), the earlier of-- (i) when the director, secretary, influential person or nominee is no longer a director, secretary, influential person or nominee for the company; or (ii) 10 years from the time the director, secretary, influential person or nominee became a permanently excluded individual, excluded individual, banned individual or a disqualified individual; or (d) otherwise, 5 years after it is made. (2) However, details of demerit points and the demerit matters for which points were allocated must be removed from the register-- (a) if the points stop having effect; or (b) if the points relate to an unsatisfied judgment debt, when the authority is satisfied the judgment debt has been paid. (3) Also, for section 99(3)(e), details of an offence must be removed from the register if-- (a) the infringement notice for the offence is withdrawn by the authority; or (b) the enforcement order stops having effect, other than because the amount owing under the enforcement order has been paid or the order has been otherwise discharged. (4) Also, a note that states that an individual is prevented, for the life of the individual, from obtaining a licence under this Act must not be removed from the register. 103 Register of holders of owner-builder permits (1) A register of persons holding owner-builder permits (the owner-builder register) must be kept by the authority. (2) The register must include the following particulars in relation to each permittee-- (a) the permittee's full name, or if the permittee is a company the full name and business address of each of the directors of the company; (b) the location of the land on which the owner-builder work is to be carried out; (c) the real property description of the land; (d) a description of the owner-builder work to be carried out on the land; (e) the date of issue of the permit; (f) the term of the permit; (g) the permit number; (h) the conditions of the permit; (i) any particulars required by regulation. (3) If circumstances change so that the particulars recorded in the register in relation to a particular permittee no longer reflect the current position, the permittee must, within 14 days after the date of the change, give the authority particulars of the change. (4) Particulars under subsection (3) may be given-- (a) by written notice; or (b) in another way approved by the authority. 103A When particulars must be removed from owner-builder register Particulars relating to a permittee must be removed from the owner-builder register when the term of the permittee's permit ends. 103B Developer register (1) A register (the developer register) containing details about each principal (the relevant developer) mentioned in section 72(5)(g) given a direction under section 72(1) must be kept by the authority. (2) The register must contain against the name of a relevant developer a note of-- (a) each direction of the authority requiring the relevant developer to rectify building work; and (b) each time the relevant developer is convicted of an offence against section 72(10). (3) However, no information may be included in the register under subsection (2)(a) until-- (a) all periods for seeking a review of the direction, and for making any appeal arising out of a review of the direction, have ended; and (b) any review or appeal about the direction is finally decided or is not proceeded with. (4) Also, no information may be included in the register under subsection (2) (b) until-- (a) all periods for making an appeal arising out of the conviction have ended; and (b) any appeal about the conviction is finally decided or is not proceeded with. (5) Subsection (6) applies if-- (a) the register contains the name of a relevant developer that is a company because the company has been convicted of an offence against section 72(10); and (b) an executive officer of the company is convicted of an offence under section 111B in relation to the offence under section 72(10); and (c) all periods for making an appeal arising out of the conviction of the executive officer have ended; and (d) any appeal about the conviction by the executive officer is finally decided or is not proceeded with. (6) A note of the conviction of the executive officer must be included in the register. 103C When notes must be removed from developer register A note made in the developer register must be taken off the register 5 years after it is made. 103D Inspection of registers A person may, on payment of the fee, and subject to the conditions, prescribed by regulation, inspect a register at the authority's offices at any time the offices are open to the public. 103E Publication of registers The authority may publish a register on the authority's internet site. Editor's note-- The authority's internet site is bsa.qld.gov.au>. 103F Certificates (1) The authority may, on application by any person and payment of the fee fixed by regulation, issue a certificate certifying any matter contained in a register kept under this Act. (2) A certificate under this section is admissible in legal proceedings as evidence of any matter stated in the certificate. 104 Appointment of inspectors (1) The authority may appoint relevant officers of the authority as inspectors. (2) The authority must issue an identity card, containing a photograph of the inspector, to each inspector. (3) A person who ceases to be an inspector must, as soon as practicable, return the identity card to the authority. Maximum penalty for contravention of this subsection--10 penalty units. 105 Inspector to produce identity card and provide information (1) An inspector must not exercise a power under this Act in relation to a person unless the inspector-- (a) first produces the inspector's identity card for inspection by the person or has the identity card displayed so it is clearly visible to the person when exercising the power; and (b) tells the person that the inspector intends to exercise the power; and (c) generally advises the person of the nature of the power to be exercised; and (d) requests the person's cooperation in relation to the exercise of the power. (2) However, if it is not practicable to comply with subsection (1)(a), the authorised officer must produce the identity card for the person's inspection at the first reasonable opportunity. (3) Failure to comply with subsection (1) does not affect the validity of the exercise of the power. 106 Inspector's power to require name and address (1) An inspector who suspects on reasonable grounds that a person has committed an offence against this Act may require the person to state the person's name and address and, if the inspector has reasonable grounds to believe that the name or address given is false, may require evidence of its correctness. (2) A person who is required under subsection (1) to state the person's name and address must not, without reasonable excuse-- (a) fail to comply with the requirement; or (b) state a false name or address. Maximum penalty--50 penalty units. (3) A person who is required under subsection (1) to give evidence of the correctness of a name or address must not, without reasonable excuse, fail to give the evidence or give false evidence. Maximum penalty--50 penalty units. (4) If-- (a) an inspector makes a requirement under subsection (1) on suspicion that a person has committed an offence against this Act; and (b) the person is not proved to have committed an offence against this Act; the person cannot be convicted of an offence against subsection (1) because of a failure to comply with the requirement. 106A Power to require production of documents (1) An inspector may require a person who has obligations under this Act or the Domestic Building Contracts Act 2000 to make available, or produce, for inspection by the inspector at a reasonable time and place nominated by the inspector, a document to which the person has access that relates to the person's obligations under this Act or the Domestic Building Contracts Act 2000. (2) The inspector may keep the document to copy it. (3) If the inspector copies the document, or an entry in the document, the inspector may require the person responsible for keeping the document to certify the copy as a true copy of the document or entry. (4) The inspector must return the document to the person as soon as practicable after copying it. (5) However, if a requirement (a document certification requirement) is made of a person under subsection (3), the inspector may keep the document until the person complies with the requirement. (6) A requirement under subsection (1) is a document production requirement. 106B Failure to produce document (1) A person of whom a document production requirement is made must comply with the requirement, unless the person has a reasonable excuse. Maximum penalty--200 penalty units. (2) It is not a reasonable excuse to fail to produce the document that producing the document might tend to incriminate the person. 106C Failure to certify copy of document (1) A person of whom a document certification requirement is made must comply with the requirement, unless the person has a reasonable excuse. Maximum penalty--100 penalty units. (2) It is not a reasonable excuse to fail to certify the document or an entry in the document that certifying the document or entry might tend to incriminate the person. 107 Power to enter and inspect building site (1) An inspector may enter and inspect a building site-- (a) for the purpose of ascertaining whether this Act is being complied with; or (b) for the purpose of determining whether the building work has been, or is being, properly carried out. (2) The entry and inspection must be-- (a) made with the consent of the person in control of the building site; or (b) during times building work is being carried out on the site; or (c) authorised by warrant of a member of the tribunal. (2A) For the purpose of asking the person in control of the site for consent to enter, an inspector may, without the person's consent or a warrant enter the site to the extent that is reasonable to contact the person. (2B) Neither subsection (2)(b) or (2A) authorises entry to a place where a person resides. (3) An inspector may apply to a member of the tribunal for a warrant under this section in relation to a particular building site. (4) Subject to subsection (5), the member may issue the warrant if the member is satisfied, by information on oath, that there is a proper reason for entering and inspecting the building site. (5) If the member requires further information concerning the grounds on which the warrant is sought, the member must not issue the warrant unless the inspector or some other person has given the information to the member in the form (either orally or by affidavit) that the member requires. (6) The warrant must-- (a) authorise the inspector, with such assistance and by such force as is necessary and reasonable, to enter and inspect the place; and (b) state whether the entry may be made at any time of the day or night or during specified hours of the day or night; and (c) specify the day (not more than 6 months after the issue of the warrant) on which the warrant ceases to have effect; and (d) state the purposes for which the warrant is issued. 107A Obstructing inspectors (1) A person must not obstruct an inspector who is exercising a power under this Act, unless the person has a reasonable excuse. Maximum penalty--100 penalty units. (2) If a person has obstructed an inspector and the inspector decides to proceed with the exercise of the power, the inspector must warn the person that-- (a) it is an offence to obstruct the inspector, unless the person has a reasonable excuse; and (b) the inspector considers the person's conduct an obstruction. (3) Subsection (2) does not apply if the obstruction is an assault. (4) In this section-- obstruct includes assault, hinder or resist or attempt or threaten to obstruct. 108 Obligation of assessment manager (1) An assessment manager must allow a relevant officer of the authority, at any reasonable time, to examine and make copies of, or take extracts from, books, documents, papers and records of the local government relating to building work or proposed building work. (2) In this section-- assessment manager includes a private certifier acting as an assessment manager under the Integrated Planning Act 1997. 108A Documents that must be kept for 7 years (1) Subsection (2) applies to the following documents-- (a) a building contract entered into by a building contractor and the plans, specifications and variations relating to the contract; (b) a building contractor's financial records relevant to the financial requirements stated in the board's policies. (2) The contractor must keep each document for 7 years from the date it is put into writing. Maximum penalty--100 penalty units. 108B False or misleading statement (1) A person must not state anything to the authority the person knows is false or misleading in a material particular. Maximum penalty--100 penalty units. (2) In a proceeding for an offence against this section, it is enough for a charge to state that the statement was, without specifying which, 'false or misleading'. (3) This section does not apply to information to which section 53B applies. 108C False or misleading document (1) A person must not give the authority a document containing information the person knows is false or misleading in a material particular. Maximum penalty--100 penalty units. (2) Subsection (1) does not apply to a person if the person, when giving the document-- (a) tells the authority, to the best of the person's ability, how it is false or misleading; and (b) if the person has, or can reasonably obtain, the correct information, gives the correct information. (3) A person must not make an entry in a document required or permitted to be made or kept under this Act knowing the entry to be false or misleading in a material particular. Maximum penalty--100 penalty units. (4) In a proceeding for an offence against subsection (1) or (3), it is enough for a charge to state that the information or entry was, without specifying which, 'false or misleading'. (5) This section does not apply to a document to which section 53B applies. 108D Contracting out prohibited A person can not contract out of the provisions of this Act. 109 Access to building sites (1) A building contractor must, at the request of a consumer, allow the consumer reasonable access to a building site at which building work is being carried out for the consumer. (2) A contractual provision that is inconsistent with subsection (1) is void. 109A Service of documents (1) A document may be served under this Act on a licensee by leaving it at, or sending it by post, telex, facsimile or similar facility to, the address of the licensee in the register of licensees kept by the authority. (2) Subsection (1) does not limit the Acts Interpretation Act 1954, section 39. 111 Prosecutions for offences (1) A prosecution for an offence against this Act may be started within 2 years after the alleged date of commission of the offence or within 1 year after the offence comes to the knowledge of the authority, whichever is the later. (2) A prosecution may only be started by a person authorised by the authority (either generally or in the particular case) to bring the prosecution or the Attorney-General. (3) The authorisation required by subsection (2) is to be presumed in the absence of evidence to the contrary. 111A Responsibility for acts or omissions of representatives (1) This section applies for-- (a) a proceeding for an offence against this Act; and (b) an inquiry conducted by the tribunal under part 7, division 4 to decide whether proper grounds exist for taking disciplinary action under the division. (2) If it is relevant to prove a person's state of mind about a particular act or omission, it is enough to show-- (a) the act was done or omitted to be done by a representative of the person within the scope of the representative's actual or apparent authority; and (b) the representative had the state of mind. (3) An act done or omitted to be done for a person by a representative of the person within the scope of the representative's actual or apparent authority is taken to have been done or omitted to be done also by the person, unless the person proves the person could not, by the exercise of reasonable diligence, have prevented the act or omission. (4) In this section-- representative means-- (a) of a company--an executive officer, employee or agent of the company; or (b) of an individual--an employee or agent of the individual. state of mind of a person includes-- (a) the person's knowledge, intention, opinion, belief or purpose; and (b) the person's reasons for the intention, opinion, belief or purpose. 111B Executive officers must ensure company complies with Act (1) The executive officers of a company must ensure the company complies with this Act. (2) If a company commits an offence against a provision of this Act, each of the company's executive officers also commits an offence, namely, the offence of failing to ensure that the company complies with the provision. Maximum penalty--the penalty for the contravention of the provision by an individual. (3) Evidence that the company has been convicted of an offence against a provision of this Act is evidence that each of the executive officers committed the offence of failing to ensure that the company complies with the provision. (4) However, it is a defence for an executive officer to prove-- (a) if the officer was in a position to influence the conduct of the company in relation to the offence--the officer exercised reasonable diligence to ensure the company complied with the provision; or (b) the officer was not in a position to influence the conduct of the company in relation to the offence. 111C Liability of directors for amounts (1) This section applies if-- (a) a company is convicted of an offence against a provision of this Act; and (b) a penalty for the offence is imposed on the company; and (c) the amount of the penalty is not paid within the time required for its payment. (2) This section also applies if-- (a) under section 91, the tribunal finds that proper grounds exist for taking disciplinary action against a company; and (b) an order is made by the tribunal imposing a penalty on the company; and (c) the amount of the penalty is not paid within the time required for its payment. (3) This section also applies if a company owes the authority an amount because of a payment made by the authority on a claim under the insurance scheme. (4) If this section applies because of subsection (1), the liability to pay the penalty attaches to-- (a) each individual who was a director of the company when the offence was committed; and (b) each individual who is a director of the company when the penalty is imposed. (5) If this section applies because of subsection (2), the liability to pay the penalty attaches to-- (a) each individual who was a director of the company when the act or omission happened giving rise to the finding of the tribunal; and (b) each individual who is a director of the company when the penalty is imposed. (6) If this section applies because of subsection (3), the liability to pay the amount attaches to-- (a) each individual who was a director of the company when building work the subject of the claim was, or was to have been, carried out; and (b) each individual who was a director of the company when the payment was made by the authority. (7) A liability under subsection (4), (5) or (6) to pay a penalty or an amount applies regardless of the status of the company, including for example, that the company is being or has been wound up. (8) If a liability under subsection (4), (5) or (6) attaches to 2 or more persons, the persons are jointly and severally liable. 112 Appropriation of penalty Any monetary penalty recovered for an offence against this Act must be paid to the authority. 113 Double jeopardy (1) The fact that disciplinary action has been taken against a person under this Act does not affect the liability of that person to be prosecuted, convicted and punished for an offence arising from the same circumstances. (2) The fact that a person has been prosecuted and convicted or acquitted of an offence against this Act or the Builders' Registration and Home-owners' Protection Act 1979 does not affect the liability of that person to disciplinary action under this Act. 114 Protection (1) Neither the State, the general manager of the authority nor a relevant officer of the authority incurs any civil liability for an honest act or omission, other than a publication act, in the performance or purported performance of functions under this Act or the Building Act 1975. (2) A civil liability that would, apart from subsection (1), attach to an entity other than the authority attaches instead to the authority. (3) Neither the State, the authority nor the general manager of the authority incurs any liability for a publication act. (4) This section does not affect the liability of a person other than the authority to disciplinary action under the conditions of the person's employment. (5) In this section-- publication act means a disclosure or publication made by or for the authority in giving a warning to the public under section 18(2)(f) about-- (a) building work; or (b) the commercial or business reputation of any person associated with building work; or (c) the quality or standard of building work performed by any person; or (d) a contravention or alleged contravention of this Act or the operation or enforcement of this Act. 115 Authority may provide services to a professional board (1) The authority may provide services to a professional board in relation to a disciplinary proceeding being, or that may be, conducted by the tribunal. Example-- The authority might make a lawyer performing work for it under a work performance arrangement available to represent a professional board at a disciplinary proceeding being conducted by the tribunal. (2) The authority may enter into arrangements with a professional board about the fees to be paid to the authority for services provided under subsection (1). (3) In this section-- disciplinary proceeding means-- (a) a disciplinary proceeding under the Architects Act 2002; or (b) a disciplinary proceeding under the Professional Engineers Act 2002. professional board means -- (a) the Board of Architects of Queensland established under the Architects Act 2002; or (b) the Board of Professional Engineers of Queensland established under the Professional Engineers Act 2002. 116 Regulations (1) The Governor in Council may make regulations under this Act. (2) Without limiting subsection (1), a regulation may-- (aa) prescribe the procedure for, and other matters relating to, the application for, or renewal of, licences under this Act; and (a) set fees payable under this Act and the matters for which the fees are payable; and (b) provide for the refunding of fees in stated circumstances; and (c) impose a penalty of not more than 20 penalty units for a contravention of a provision of the regulation. - SCHEDULE 1 -- TRANSITIONAL AND VALIDATING PROVISIONS 1A Definitions In section 2-- former board means the Builders' Registration Board of Queensland established under the repealed Act. repealed Act means the Builders' Registration and Home-Owners' Protection Act 1979. 2 Transitional provisions (3) The provisions of the repealed Act about insurance continue to apply, with the changes prescribed by regulation under this Act, to building work started before 1 July 1992 and-- (a) the provisions continue to apply to the building work whether the work is carried out before or after the date as if the repealed Act had not been repealed; and (b) the authority may exercise any of the powers of the former board about the insurance. (3A) Instruments of guarantee and indemnity entered into under section 31(3) of the repealed Act and in force immediately before 1 July 1992 continue to have effect, with all necessary changes and any changes prescribed by regulation under this Act, until the instruments are discharged by the authority. (3B) Without limiting subsection (3A), a reference in the instruments to the former board is taken to be a reference to the authority. (3C) The instruments guarantee the payment by the guarantors of amounts payable to the authority under-- (a) section 70 of the repealed Act because of subsection (3); and (b) section 71 of this Act. (3D) A house purchaser's agreement that the former board is taken to have entered into under the repealed Act continues in force for the balance of its term and all rights, duties, obligations and liabilities of the former board under the agreement are taken to be the rights, duties, obligations and liabilities of the authority. (3E) An amount paid by the former board under its obligations under section 69 of the repealed Act and not recovered at 1 July 1992-- (a) is taken to be a debt owing to the authority; and (b) the authority has the same rights under section 71 of this Act as if the amount had been paid by the authority on a claim under the insurance scheme mentioned in that section. (4) A direction or order for rectification of building work may be made under this Act in relation to building work, as defined in the repealed Act, carried out before 1 July 1992 by a person who was a registered builder, registered general builder or registered house builder within the meaning of the repealed Act as if references in this Act to a licensed contractor extended to the person. (5) An order in force under section 59 of the repealed Act immediately before the commencement of part 6 is, on the commencement of that part, taken to be a direction under that part. (6) The provisions of the repealed Act relating to building work carried out by owner-builders continue to apply, subject to any adaptations and modifications prescribed under this Act, to any such building work that had been carried out or started before the commencement of part 3 and an approval mentioned in section 53(3) of the repealed Act may be given by the authority. (7) A proceeding for an offence against the repealed Act may, subject to the limitation of time prescribed by section 58 of the repealed Act, be brought by a person authorised by the authority, either generally or in the particular case, to bring the proceeding. (8) A person who was, immediately before the commencement of part 3, carrying on the business of a class of building work for which a licence is required under this Act, but for which registration was not required under the repealed Act, is taken to be licensed to carry out and supervise that class of building work-- (a) until a day 6 months after the commencement of part 3 or, if another day is fixed by regulation for the purposes of this subsection in relation to the relevant class of building work, that other day; or (b) until the day the person is granted or refused a licence under this Act; whichever is earlier. 4 References to repealed Acts A reference in an Act or document to either of the following Acts is taken to be a reference to this Act-- • Builders' Registration Act 1971 • Builders' Registration and Home-owners' Protection Act 1979. 5 References to registrar/general manager and Home Building Advisory Service In an Act or document-- (a) a reference to the registrar/general manager of the authority is taken to be a reference to the general manager of the authority; and (b) a reference to Home Building Advisory Service is taken to be a reference to the authority. 8 Definitions In this part-- affected licence means a document purporting to be a licence that-- (a) was issued by the authority on or after 1 July 1992 but before the commencement day; and (b) was issued to an individual who did not, or a company in relation to which the company's nominated supervisor did not, when the document was issued, have the relevant qualifications and experience required by regulation. basic compliance period, for a transitional licence, see definition transitional licence. building contract means a contract for the carrying out of building work by a person to whom an affected licence has been issued. commencement day, for a provision of this part, means the day on which the provision in which the expression occurs commences. compliance period, for a transitional licence, means-- (a) the basic compliance period for the licence; or (b) if the authority extended or further extended the period--the period as extended. expired licence means an affected licence to which section 9(3) applies. relevant licensee, for an affected or transitional licence, means the person to whom the licence was issued. transitional licence means an affected licence in relation to which the authority, in issuing the licence-- (a) indicated to the relevant licensee that the licence was a transitional licence; and (b) stated a period (the basic compliance period)-- (i) as the period for which the licence was issued; and (ii) in relation to the licensee (for a licence issued to an individual) or the company's nominated supervisor (for a licence issued to a company)--as the period for the licensee or supervisor to obtain stated qualifications or experience in order to have the relevant qualifications and experience required by regulation. 9 Validation of affected licences (1) An affected licence is taken to be, and at all times to have been, a validly issued licence. (2) Subsection (3) applies if-- (a) before the commencement day, an affected licence was suspended, cancelled or surrendered; and (b) for a suspension or cancellation--the decision to suspend or cancel the licence was or is not subsequently annulled or terminated under this Act. (3) Despite subsection (1), the licence is taken to have been a validly issued licence only until it was suspended, cancelled or surrendered. 10 Period of effect of transitional licences--compliance period ended (1) This section applies to a transitional licence if-- (a) the licence is not an expired licence; and (b) the compliance period for the licence ended before the commencement day. (2) The licence is taken to have remained in force for the period starting when the compliance period ended and ending on the day before the commencement day. (3) Also, the licence remains in force, subject to this Act, until the end of the period of 3 months starting on the commencement day. (4) Subsection (6) applies if-- (a) before the commencement day, the relevant licensee entered into a building contract; and (b) neither of the following things happens before the end of the period of 3 months mentioned in subsection (3)-- (i) practical completion under the contract; (ii) termination of the contract. (5) However, subsection (6) applies only for the contract or contracts to which it relates. (6) Despite subsection (3), the licence remains in force, subject to this Act-- (a) if, by the application of subsection (4), there is only 1 contract involved--until 1 of the following things happens-- (i) the stage of practical completion is reached under the contract; (ii) the contract is terminated; or (b) if, by the application of subsection (4), there is more than 1 contract involved--until there is no contract either under which the stage of practical completion has not been reached or that has not been terminated. 11 Period of effect of transitional licences--compliance period current (1) This section applies to a transitional licence if-- (a) the licence is not an expired licence; and (b) the compliance period for the licence has not ended before the commencement day. (2) The licence remains in force, subject to this Act, until the later of the following-- (a) the end of the compliance period; (b) the end of the period of 3 months starting on the commencement day. (3) Subsection (5) applies if-- (a) before the commencement day, the relevant licensee entered into a building contract; and (b) neither of the following things happens before the end of the period for which the licence remains in force under subsection (2)-- (i) practical completion under the contract; (ii) termination of the contract. (4) However, subsection (5) applies only for the contract or contracts to which it relates. (5) Despite subsection (2), the licence remains in force, subject to this Act-- (a) if, by the application of subsection (3), there is only 1 contract involved--until 1 of the following things happens-- (i) the stage of practical completion is reached under the contract; (ii) the contract is terminated; or (b) if, by the application of subsection (3), there is more than 1 contract involved--until there is no contract either under which the stage of practical completion has not been reached or that has not been terminated. 12 Condition of transitional licences (1) This section applies to a transitional licence that is not an expired licence. (2) The licence is subject to a condition that the relevant licensee must not, while the licence remains in force under section 10 or 11, enter into a building contract on the basis of being a licensee under the licence. (3) The authority must promptly give written notice of the condition to the relevant licensee. (4) A failure by the authority to comply with subsection (3) does not affect the effectiveness of the condition. 13 Existing board goes out of office On the commencement of this section, the members of the board in office immediately before the commencement go out of office. 14 Residential construction work for s 71 For applying section 71(2)(a)(iii) to (vi), the relevant residential construction work mentioned in section 71(2)(a) does not include relevant residential construction work that was the subject of a contract entered into before 1 July 2000. 15 Building work for s 72 For applying section 72(5)(ba) to (bd), the building work mentioned in section 72(5) does not include building work that was the subject of a contract entered into before 1 July 2000. 16 Delayed operation of definition building work, para (g) Despite schedule 2, definition building work, paragraph (g), until the end of 31 December 2000, building work under this Act is taken not to include the installation, maintenance, or certification of the installation or maintenance, of a fire protection system for a commercial or residential building. 17 Definition for pt 5 In this part-- the regulation means the Queensland Building Services Authority Regulation 1992. 18 Validation of provisions about financial requirements (1) This section applies to section 7 of the regulation as in force, or purporting to be in force, before 1 October 1999 and section 7A of the regulation as in force, or purporting to be in force, before 19 November 1993 so far as the sections related to financial requirements. (2) The sections are taken to have been valid at all times and to have imposed financial requirements under section 31 of the Act as in force at a time mentioned in subsection (1). (3) Without limiting subsection (2), the authority and board are taken to have had the power to make the determinations and policies mentioned in the sections of the regulation. 19 Validation of provision about terms of insurance policy (1) This section applies to section 24 of the regulation as in force, or purporting to be in force, before the commencement of this section. (2) The section is taken to have been valid at all times including for the purpose of prescribing the terms of a policy of insurance under section 69(2) of the Act as in force at a time mentioned in subsection (1). (3) Without limiting subsection (2), the board is taken to have had the power to make the policies mentioned in the section of the regulation. 20 Existing policies apply for amended s 69(2) (1) Board policies in force, or purporting to be in force, immediately before the commencement of this section for the purpose of section 24 of the regulation continue in force for the purpose of section 69(2) of the Act as amended by the Queensland Building Services Authority and Other Legislation Amendment Act 2003. (2) Subsection (1) does not prevent the board amending or repealing the policies. 21 Validation of sch 2, pt 25 of the regulation etc. (1) This section applies to schedule 2, part 25 of the regulation as in force, or purporting to be in force, before the commencement of the Queensland Building Services Authority Amendment Regulation (No. 2) 2002. (2) The part is taken to have been valid at all times before the commencement of the Queensland Building Services Authority Amendment Regulation (No. 2) 2002 for the purpose of specifying a class of building work by regulation under section 30(2) of the Act and having stated the qualifications and experience required by regulation under section 31(1)(b) or 32(b) of the Act. (3) Without limiting subsection (2), the authority is taken to have had the power to give the directions mentioned in the part and to make decisions for deciding qualifications and experience requirements for the part. (4) A board policy, or purported board policy, giving a direction or containing a decision about scope of work, qualifications or experience requirements is taken, for this section, to have been a direction or decision of the authority given for the part. 22 Transitional provision for licences valid Section 35 of the regulation as inserted by the Queensland Building Services Authority Amendment Regulation (No. 2) 2002 is taken to have been valid for the purpose mentioned in the section. 23 Definition for div 5 In this division-- non-trading licence means an instrument purporting to be a contractor's licence issued or renewed by the authority, in the period starting on 19 November 1999 and ending immediately before 27 August 2001, stating that it was a non-trading licence or containing an expression indicating that it was a non-trading licence. Example of contractor's licence containing an expression indicating the licence was a non-trading licence-- a contractor's licence containing the expression 'NTL' 24 Non-trading licence taken to be valid (1) A non-trading licence is taken to have been and to be a valid contractors licence subject to a valid condition under section 35 or 36 of the Act that the licensee must not carry out, undertake to carry out or supervise the carrying out of building work. (2) If the authority removed or removes the statement or expression on the licence stating or indicating that it was a non-trading licence, the authority is taken to have validly revoked the condition. 25 Validation of provision about courses of instruction for owner-builders (1) This section applies to section 13(4) and (5) of the regulation as in force, or purporting to be in force, before the commencement of this section. (2) Section 13(4) and (5) are taken to have been, and to be, valid at all times including for the purpose of specifying a course of instruction under section 44(3) of the Act. (3) Without limiting subsection (2), the board is taken to have had the power to make the policies mentioned in section 13(4) and (5) of the regulation. 26 Certain board's policies continue in force (1) The board's policies that are general policies in force under the Act before amendment-- (a) continue in force as board's policies under the Act after amendment; and (b) may be reviewed by the board and amended or repealed as if they were made under section 9A of the Act after amendment. (2) The board's policies that are supervision policies continue in force only until the commencement of section 17 of the amendment Act. (3) In this section-- Act after amendment means the Queensland Building Services Authority Act 1991 as in force immediately after the commencement of section 6 of the amendment Act. Act before amendment means the Queensland Building Services Authority Act 1991 as in force immediately before the commencement of section 6 of the amendment Act. amendment Act means the Queensland Building Services Authority and Other Legislation Amendment Act 2003. 27 Definitions for pt 6 In this part-- commencement means the commencement of this part. former provisions means sections 67H, 67I, 67J, 67Q, 67U and 67W, as in force before the commencement. 28 Application of former provisions to existing building contracts The former provisions continue to apply to building contracts entered into before the commencement as if the Building and Construction Industry Payments Act 2004, schedule 1 had not commenced. 29 Rights and entitlements of particular employees (1) This section applies to a person who-- (a) becomes an employee of the employing office; and (b) was an employee of the authority-- (i) immediately before the commencement of this section; and (ii) immediately before becoming an employee of the employing office. (2) On becoming an employee of the employing office, the person is taken to be employed under section 29F of the Act on the conditions on which the person would have been employed by the authority, immediately before the person became an employee of the employing office, if the authority had never become an employer under the Workplace Relations Act 1996 (Cwlth). (3) Also-- (a) the person keeps all rights and entitlements, including entitlements to receive long service, recreation and sick leave and any similar entitlements, that-- (i) have accrued or were accruing to the person as an employee of the authority; and (ii) would have accrued to the person if the authority had never become an employer under the Workplace Relations Act 1996 (Cwlth); and (b) if the person is a member of a superannuation scheme-- (i) the person keeps all entitlements accrued or accruing to the person as a member of the scheme; and (ii) the person's membership of the scheme is not affected. (4) Without limiting subsection (3), for working out the person's rights and entitlements, including entitlements to receive long service, recreation and sick leave and any similar entitlements, employment of the person by the employing office is a continuation of employment of the person by the authority. (5) If the person was a seconded employee immediately before becoming an employee of the employing office, the arrangement under which the person was performing work for a government entity other than the authority may continue until the arrangement ends, and, if the arrangement does continue-- (a) subsection (2) does not apply to the person; and (b) on the ending of the arrangement, the person is taken to be employed under section 29F of the Act on the conditions on which the person would have been employed by the authority, on the ending of the arrangement, if-- (i) the person had continued to be an employee of the authority; and (ii) the authority had never become an employer under the Workplace Relations Act 1996 (Cwlth). (6) Subsections (2) and (5)(b) do not limit section 29F(3) and (4) of the Act. (7) In this section-- employee of the authority includes a seconded employee. seconded employee means an employee of the authority performing work for another government entity under an arrangement entered into, before the commencement of this section, by the authority with the appropriate authority of the other government entity. 30 Application of industrial instruments The employing office is taken to be bound by the industrial instruments that bound the authority immediately before it became an employer under the Workplace Relations Act 1996 (Cwlth). 31 Transitional provisions for existing supervisors' licences (1) This section applies to a licensee who at the commencement of this section holds a supervisor's licence. (2) The licensee is taken to hold a nominee supervisor's licence for the classes of building work to which the supervisor's licence applies. (3) In this section-- supervisor's licence means a licence authorising the licensee to supervise (but not to carry out) building work. 32 Transitional qualifications for site supervisors' licences (1) This section applies if a person who does not have the required qualifications applies for a site supervisor's licence during the transitional period. (2) The authority may grant the application even though the applicant does not have the required qualifications for the licence if -- (a) the authority has sighted a declaration by a licensed contractor stating that-- (i) the applicant has carried out building work as an officer or employee of the contractor for a period of not less than 12 months; and (ii) the contractor has had an opportunity to assess the skills of the applicant during the period; and (iii) the contractor is satisfied that the applicant has the skills to carry out the duties of a site supervisor for a licence of the class applied for; and (b) the authority is satisfied that the applicant has the skills to be a site supervisor for that class. (3) If the licensed contractor is a company, the declaration must be by the company's nominee. (4) Nothing in this section limits the powers the authority may exercise under section 33(2) or (3). (5) In this section-- required qualifications means the qualifications required for a site supervisor's licence under section 32AA. transitional period means the period of 1 year from the commencement of section 30B. 33 Transitional provision for fire protection occupational licences Sections 42C and 42D do not apply to anything happening before 2 years from the commencement of section 30C. 34 Transitional provision for certain fire protection work Section 42 does not apply to the following building work until 2 years after the commencement of this section-- (a) the design of a fire protection system; (b) the development, approval or certification of emergency evacuation procedures for a controlled evacuation during a fire emergency; (c) the formulation or provision of alternative solutions relating to fire safety; (d) the inspection or investigation of, and the provision of advice or a report about compliance with the Building Act 1975 or the Building Code of Australia relating to fire safety. 35 Transitional provision for photograph on licence (1) Subsection (2) applies to the grant or renewal of a licence that happens before 2 years from the commencement of this section. (2) The licence may, or may not, contain a recent photograph of the licensee. 36 Transitional provision for continuation of register of licensees (1) The register of licensees under section 39, as in force immediately before the commencement of section 99, continues as the licensee register under section 99. (2) The authority may continue to exercise its powers under part 8 in relation to the licensee register. - SCHEDULE 2 -- DICTIONARY accumulate, for part 3E, see section 67AQ. administering authority, for part 3E, see section 67AQ. administration services, for building work or tribunal work, includes the following-- (a) preparing tender documentation and calling and selecting tenders; (b) arranging and conducting on-site meetings and inspections; (c) arranging payment of subcontractors; (d) arranging for certificates, including certificates from a local government, to be issued; (e) administration for the work usually carried out by-- (i) a construction manager; or (ii) a project manager under a project management agreement; (f) other administration for the work usually carried out by a licensed contractor in the course of the contractor's business. advisory services, for building work or tribunal work, includes the provision of advice or a report about building work other than-- (a) the carrying out of a completed building inspection; or (b) the inspection or investigation of a building, and the provision of advice or a report, for the following-- (i) termite management systems for the building; (ii) termite infestation in the building. alternative solution see Building Act 1975, schedule 2. apprentice means an apprentice under the Vocational Education, Training and Employment Act 2000. approved security provider, for part 4A, see section 67A. architect means a person registered as an architect under the Architects Act 2002. assessment manager has the meaning given by the Integrated Planning Act 1997. Editor's note-- Integrated Planning Act 1997, section 3.1.7(1)-- (1) The assessment manager-- (a) for an application mentioned in schedule 8A--is the entity stated for the application; and (b) administers and decides an application, but may not always assess all aspects of development for the application. authority means the Queensland Building Services Authority. banned individual see section 67AC. board means the Queensland Building Services Board. board's policies means the policies of the board made for the purposes of section 9A. building includes any fixed structure. Examples of a fixed structure-- a fence other than a temporary fence a water tank connected to the stormwater system for a building an inground swimming pool or an aboveground pool fixed to the ground Building Code of Australia see the Building Act 1975, section 12. building contract means a contract or other arrangement for carrying out building work in Queensland, for the following-- (a) this Act, other than part 4A; (b) the definition construction management trade contract where it is used, other than in part 4A. building contract, for part 4A, see section 67A. building contractor means a person who carries on a business that consists of or includes carrying out building work, and includes a subcontractor who carries out building work for a building contractor. building dispute means-- (a) a domestic building dispute; or (b) a minor commercial building dispute; or (c) a major commercial building dispute if the parties to the dispute consent to the dispute being heard by the tribunal under section 79. building owner means a person for whom tribunal work is to be, is being or has been carried out, but does not include a building contractor for whom tribunal work is carried out by a subcontractor. building site means a place where building work has been, is being, or is about to be, carried out. building work means-- (a) the erection or construction of a building; or (b) the renovation, alteration, extension, improvement or repair of a building; or (c) the provision of lighting, heating, ventilation, airconditioning, water supply, sewerage or drainage in connection with a building; or (e) any site work (including the construction of retaining structures) related to work of a kind referred to above; or (f) the preparation of plans or specifications for the performance of building work; or (fa) contract administration carried out by a person in relation to the construction of a building designed by the person; or (g) fire protection work; or (h) carrying out site testing and classification in preparation for the erection or construction of a building on the site; or (i) carrying out a completed building inspection; or (j) the inspection or investigation of a building, and the provision of advice or a report, for the following-- (i) termite management systems for the building; (ii) termite infestation in the building; but does not include work of a kind excluded by regulation from the ambit of this definition. building work services means 1 or more of the following for building work-- (a) administration services; (b) advisory services; (c) management services; (d) supervisory services. calling includes a craft, manufacture, occupation, trade, undertaking or vocation. carry out, for building work (other than for part 4A) means any of the following-- (a) carry out the work personally; (b) directly or indirectly cause the work to be carried out; (c) provide building work services for the work. carry out building work, for part 4A, see section 67A. carry out tier 1 defective work see section 67AB(2). commercial building contract, for part 4A, see section 67A. commercial building dispute means-- (a) a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work; or (b) a claim or dispute arising between 2 or more building contractors relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work; or (c) a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable commercial work other than a claim for personal injuries; or (d) a claim or dispute arising between a building owner or a building contractor and any 1 or more of the following relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work-- (i) an architect; (ii) an engineer; (iii) a surveyor; (iv) a quantity surveyor; (v) an electrician or an electrical contractor; (vi) a supplier or manufacturer of materials used in the tribunal work. company means any body corporate. completed building inspection means the inspection or investigation of, and the provision of advice or a report about, the following class 1a or 10 buildings under the Building Code of Australia-- (a) a building for which there is no current contract between a building contractor and a consumer because the contract has been completed; Example-- an existing detached house that has previously been occupied or that has recently been built (b) a building on which work is not being carried out because the contract under which it was being carried out has been terminated; Example-- a detached house on which a building contractor has stopped building work in breach of the terms of a contract with a consumer and the consumer has terminated the contract (c) a building on which work is being, or was, carried out but not under a contract between a building contractor and a consumer. Example-- a detached house being built by, or that was built by, a building contractor but not under a contract with a particular consumer This is known in the building industry as "a speccy". Editor's note-- Class 1a includes a detached house, a row house, a terrace house, a town house and a villa unit. Class 10 includes non-habitable buildings such as private garages, carports and sheds. condition includes a limitation or restriction. construction management contract means a contract under which a principal engages a construction manager to provide building work services for building work carried out for the principal under construction management trade contracts. construction management trade contract see section 67A. construction manager means a person who provides building work services for the carrying out of building work for a principal under a construction management contract. consumer means a person for whom building work is carried out, but does not include a building contractor for whom building work is carried out by a subcontractor. contract, for part 7, means a contract for carrying out tribunal work. contract administration, in relation to building work designed by a person, includes the following-- (a) preparing tender documentation and calling and selecting tenders; (b) preparing, or helping the person's clients with the preparation of, contracts; (c) preparing additional documentation for the person's clients or building contractors; (d) arranging and conducting on-site meetings and inspections; (e) arranging progress payments; (f) arranging for certificates, including certificates from a local government, to be issued; (g) providing advice and help to the person's clients including during the maintenance period allowed under a contract. contracted party, for part 4A, see section 67A. contracting party see section 67A. contractor's licence see section 30(1). contract price, for part 4A, see section 67A. convicted company officer means a person who has been convicted of an offence under the Corporations Act 2001 (Cwlth), section 596(1)(b) or (c). conviction, for part 3E, see section 67AQ. decision includes an order or direction. default certificate see section 67AQ. defective, in relation to building work, includes faulty or unsatisfactory. demerit matter see section 67AQ. demerit offence, for part 3E, see section 67AR. demerit points see section 67AQ. design work means-- (a) the preparation of plans or specifications for building work; or (b) professional advice in relation to building work. developer register, for part 8, see section 98. disciplinary proceeding means a proceeding under section 88. disqualified individual see section 67AU. document certification requirement see section 106A(5). document production requirement see section 106A(6). domestic building contract means a domestic building contract under the Domestic Building Contracts Act 2000. domestic building dispute means-- (a) a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work; or (b) a claim or dispute arising between 2 or more building contractors relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work; or (c) a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work other than a claim for personal injuries; or (d) a claim or dispute arising between a building owner or a building contractor and any 1 or more of the following relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work-- (i) an architect; (ii) an engineer; (iii) a surveyor; (iv) a quantity surveyor; (v) an electrician or an electrical contractor; (vi) a supplier or manufacturer of materials used in the tribunal work. domestic building work see the Domestic Building Contracts Act 2000, schedule 2. employee of the employing office see section 29F(2). employing office means the Queensland Building Services Employing Office established under section 29A. enforcement debtor see the State Penalties Enforcement Act 1999, schedule 2. enforcement order see the State Penalties Enforcement Act 1999, schedule 2. engineer means a person who is a registered professional engineer under the Professional Engineers Act 2002. excluded company see section 56AC(7). excluded individual, for a relevant event, see section 56AC(3) and (4). executive officer, for part 2A, means the executive officer of the employing office appointed under section 29D. executive officer, of a company, means a person who is-- (a) a director or secretary of the company; or (b) a person who is concerned with, or takes part in, the company's management, whether or not the person is a director or secretary of the company or the person's position is given the name of executive officer. field work means-- (a) a site investigation; or (b) a site assessment; or (c) soil sampling; or (d) soil collection. fire protection occupational licence see section 30C(1) and (2). fire protection system, for a building, means a system of fire protection for all or part of the building comprising some or all of the following-- (a) portable fire-fighting appliances, including, for example, wheeled fire extinguishers, fire hoses, fire blankets and portable fire extinguishers; (b) fire hydrants, with or without pumps; (c) fire hose reels, with or without pumps; (d) a fire or smoke detection system, a heat or smoke alarm or another alarm system or emergency warning and communication system; (e) a fire suppression system or fire sprinkler system, whether solid based, liquid based or gas based; (f) fire doors, fire shutters and fire damper assemblies; (g) emergency lighting. fire protection work means any of the following for a building or part of a building-- (a) the installation, restoration, repair or maintenance of a fire protection system; (b) the preparation of any certificate, statement or record-- (i) relating to the installation, restoration, repair or maintenance of a fire protection system; or (ii) stating whether a fire protection system meets a standard, requirement or specification; (c) the design of a fire protection system; (d) the development, approval or certification of emergency evacuation procedures for a controlled evacuation during a fire emergency; (e) the formulation or provision of alternative solutions relating to fire safety; (f) the inspection or investigation of, and the provision of advice or a report about, compliance with the Building Act 1975 or the Building Code of Australia relating to fire safety. government entity see the Public Service Act 1996, section 21. Editor's note-- Public Service Act 1996--now see the Public Service Act 2008, section 249(2). industrial instrument see the Industrial Relations Act 1999, schedule 5. influential person, for a company, means an individual, other than a director or secretary of the company, who is in a position to control or substantially influence the conduct of the company's affairs, including, for example, a shareholder with a significant shareholding, a financier or a senior employee. infringement notice see section 67AQ. infringement notice offence see the State Penalties Enforcement Act 1999, schedule 2. insurance notification form means a form approved by the authority on which information about building work is submitted to the authority for insuring the work under the statutory insurance scheme. judgment debt see section 67AS. licence means a licence under this Act. licence card means a licence card issued under section 34. licence certificate means a licence certificate issued under section 34. licensed builder means a person who is a licensed builder under the regulations. licensed contractor means a person who holds a contractor's licence. licensed supervisor, for building work, means a person who holds a licence under this Act authorising supervision of building work of the relevant class. licensee means a person who holds a licence. licensee register, for part 8, see section 98. major commercial building dispute means a commercial building dispute where either the claim or the counterclaim exceeds $50000. management services, for building work or tribunal work, includes-- (a) coordinating the scheduling of the work by building contractors including as agent for another person; and (b) management for the work usually carried out by-- (i) a construction manager; or (ii) a project manager under a project management agreement; and (c) other management for the work usually carried out by a licensed contractor in the course of the contractor's business. minor commercial building dispute means a commercial building dispute where neither the claim nor the counterclaim exceeds $50000. minor domestic building dispute means a domestic building dispute where neither the claim nor the counterclaim exceeds $10000. nominee, in relation to a company, means an officer or employee of the company nominated by the company to have the general supervision of building work to be carried out under a licence. nominee supervisor means a person who holds a nominee supervisor's licence. nominee supervisor's licence see section 30A(1). occupational licence means a licence or registration for an occupation that is- - (a) issued to a person by an entity other than the authority; and (b) required by the person to carry out the occupation. owner of land means-- (a) for freehold land--the registered owner of the land under the Land Title Act 1994; or (b) for land held under a statutory lease or licence giving a right to possession of the land--the lessee or licensee. Note-- Owner has a different meaning for part 3, division 8. owner-builder course, for part 3, division 8, see section 43D. owner-builder permit see section 43E. owner-builder register, for part 8, see section 98. owner-builder work see section 43D. payment claim, for part 4A, see section 67A. period of 3 years, for part 3E, see section 67AQ. permanently excluded individual see section 58. permitted individual, for a relevant event, means an individual who, under part 3A, is categorised as a permitted individual for the relevant event. permittee means the holder of an owner-builder permit under this Act. personally supervise, in relation to building work, means personally exercise control over the work by overseeing and directing the work to ensure it is-- (a) in accordance with the plans and specifications set out in the contract for the work; and (b) of a standard expected of a competent holder of a contractor's licence of the relevant class. PIN see section 34A. principal see section 67A. progress payment, for part 4A, see section 67A. project management agreement means a contract under which a principal engages a project manager to provide building work services for building work carried out for the principal other than under construction management trade contracts. project manager means a person who provides building work services for the carrying out of building work for a principal under a project management agreement. rectify building work means to remedy defective building work or to complete incomplete building work. registrar, for part 3E, see section 67AQ. registrar of titles, for land that is not under the Land Title Act 1994, means the officer responsible for keeping a register for the land. relevant bankruptcy event see section 56AC(1)(a). relevant company event see section 56AC(2)(b). relevant event means a relevant bankruptcy event or a relevant company event. relevant officer, of the authority, means-- (a) an employee of the employing office or of another government entity performing work for the authority under a work performance arrangement; or (b) an officer or employee of the authority. renewal day, for a licence, means the day the licence is due to be renewed. residential construction work means building work classified by regulation as residential construction work. residential unit means a part of a building designed for separate occupation as a residence. retention amount, for part 4A, see section 67A. review means review by the tribunal. reviewable commercial work means tribunal work other than reviewable domestic work. reviewable domestic work means domestic building work under the Domestic Building Contracts Act 2000, except that for applying section 8(8) of that Act, the definition excluded building work in that Act is taken not to mean anything mentioned in paragraph (b), (c) or (d) of the definition. security, for part 4A, see section 67A. site classification means the classification of a site, or the reclassification of a site, under a standard directed to ensuring the appropriate selection or design of footings. site supervisor means a person who holds a site supervisor's licence. site supervisor's licence see section 30B(1) and (2). site testing means-- (a) field work for soil testing or site classification; or (b) laboratory testing of soil. speculative residential construction work means residential construction work carried out by a building contractor if-- (a) the work is not carried out under a contract with a consumer; and (b) the work is carried out on land owned by the building contractor; and (c) the work is a single detached dwelling or a multiple dwelling of not more than 3 storeys; and (d) the dwelling has been sold, or is intended for sale, to another person. SPER, for part 3E, see section 67AQ. statutory insurance scheme means the insurance scheme established under part 5. subcontract, for part 4A, see section 67A. subcontractor, for part 7, means-- (a) a building contractor that carries out tribunal work for another building contractor; or (b) a building contractor that carries out tribunal work for another person under a construction management trade contract under section 67B. supervisory services, for building work or tribunal work, includes-- (a) the development, implementation and management of a system for the supervision of the work; and (b) the coordination or management of persons undertaking the supervision of the work; and (c) the personal supervision of the work; and (d) any other supervision of building work under this Act. term of ban see section 67AO. term of disqualification, for part 3E, see section 67AZM. tier 1 defective work see section 67AB(1). trainee means a trainee under the Vocational Education, Training and Employment Act 2000. tribunal means the tribunal under the Commercial and Consumer Tribunal Act 2003. Tribunal Act means the Commercial and Consumer Tribunal Act 2003. tribunal work see sections 75 and 76. undertake to carry out, for building work, means any of the following-- (a) enter into a contract to carry out the work; (b) submit a tender to carry out the work; (c) make an offer to carry out the building work. unsatisfied, in relation to a judgment debt, see section 67AT. valuable instrument, for part 4A, see section 67A. value of building work means an amount representing the reasonable cost to a consumer of having the work carried out by a licensed contractor on the basis that all building materials are to be supplied by the contractor (whether or not the work is in fact carried out by a licensed contractor on that basis). variation, for part 4A, see section 67A. work performance arrangement means an arrangement under which an employee of a government entity performs work for another government entity. - NOTES Page Date to which amendments incorporated 238 Key 239 Table of reprints 239 Tables in earlier reprints 240 List of legislation 240 List of annotations 244 List of forms notified or published in the gazette 271 This is the reprint date mentioned in the Reprints Act 1992, section 5(c). Accordingly, this reprint includes all amendments that commenced operation on or before 1 July 2009. Future amendments of the Queensland Building Services Authority Act 1991 may be made in accordance with this reprint under the Reprints Act 1992, section 49. Key Explanation Key Explanation AIA = Acts Interpretation Act 1954 (prev) = previously amd = amended proc = proclamation amdt = amendment prov = provision ch = chapter pt = part def = definition pubd = published div = division R[X] = Reprint No. [X] exp = expires/expired RA = Reprints Act 1992 gaz = gazette reloc = relocated hdg = heading renum = renumbered ins = inserted rep = repealed lap = lapsed (retro) = retrospectively notfd = notified rv = revised edition num = numbered s = section o in c = order in council sch = schedule om = omitted sdiv = subdivision orig = original SIA = Statutory Instruments Act 1992 p = page SIR = Statutory Instruments Regulation 2002 para = paragraph SL = subordinate legislation prec = preceding sub = substituted pres = present unnum = unnumbered Reprint No. Amendments to Effective Reprint date 1 1992 Act No. 68 7 December 1992 9 December 1992 2 1993 Act No. 76 14 December 1993 10 January 1994 3 1994 Act No. 20 5 August 1994 24 August 1994 3A 1995 Act No. 58 28 November 1995 20 August 1996 3B 1996 Act No. 58 5 December 1996 9 December 1996 4 1996 Act No. 58 1 June 1997 20 October 1997 4A 1997 Act No. 70 1 December 1997 9 February 1998 5 1998 Act No. 13 30 April 1998 1 May 1998 6 1999 Act No. 43 1 October 1999 6 November 1999 7 2000 Act No. 24 1 July 2000 7 July 2000 7A 2000 Act No. 24 28 February 2002 1 March 2002 Reprint No. Amendments included Effective Notes 7B 2002 Act No. 51 6 December 2002 7C 2002 Act No. 53 2002 Act No. 54 1 January 2003 7D 2003 Act No. 1 4 March 2003 7E 2003 Act No. 1 5 May 2003 7F 2003 Act No. 1 2003 Act No. 30 1 July 2003 7G 2003 Act No. 36 4 July 2003 8 2003 Act No. 1 1 September 2003 8A 2004 Act No. 6 1 October 2004 8B 2004 Act No. 53 29 November 2004 8C 2004 Act No. 6 (amd 2005 Act No. 30 September 2005 33) 8D 1975 Act No. 11 (amd 2006 Act No. 1 September 2006 36) 2006 Act No. 36 8E 2007 Act No. 20 23 April 2007 8F 2007 Act No. 47 21 December 2007 9 2007 Act No. 47 1 January 2009 9A 2009 Act No. 9 1 July 2009 Name of table Reprint No. Corrected minor errors 1, 3, 5 (The following information about forms is taken from the gazette and is included for information purposes only. Because failure by a department to notify or publish a form in the gazette does not invalidate the form, you should check with the relevant government department for the latest information about forms (see Statutory Instruments Act, section 58(8)).) >