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TASMANIA
__________
BUILDING PRACTITIONERS ACCREDITATION
(MISCELLANEOUS PROVISIONS) BILL 2008
__________
CONTENTS
Preamble
1. Short title
2. Commencement
3. Interpretation
4. Objects of Act
5. Application of Act
6. Act binds Crown
7. Appointment of auditor
8. Duty of Company to forward financial records to auditor
9. Audit of Company's financial records
10. Powers of auditor
11. Submission of draft report to Company
12. Publication of report
13. Debts due to Crown by Company
14. Representative liability of original members
15. Power of Minister to require payment by Company or original
members
16. Duty of Director of Building Control
17. Power of Supreme Court to set aside dispositions
18. Expenses of administration of this Act
[Bill 21]
19. Regulations
20. Administration of Act
2
BUILDING PRACTITIONERS ACCREDITATION
(MISCELLANEOUS PROVISIONS) BILL 2008
This Public Bill originated in the Legislative Council, and, having this day passed, is
now ready for presentation to the House of Assembly for its concurrence.
D. T. PEARCE, Clerk of the Council
17 April 2008
(Brought in by the Honourable Andrew Paul Harriss)
A BILL FOR
An Act relating to certain agreements for the accreditation
of building practitioners
Preamble
WHEREAS:
A. On 15 February 2006 an agreement was made by the
Minister for Infrastructure, Energy and Resources (in this
Preamble referred to as "the Minister" and Tasmanian
Compliance Corporation Pty Ltd (ACN 104 148 165, in this
Preamble referred to as "the Company") which agreement
conferred on the Company an authorisation to accredit
building practitioners and purported to make that authorisation
exclusive:
B. During the month of June 2006, owing to concern in the
community, a registered company auditor was appointed to
conduct an audit at public expense of the Company's financial
affairs relating to the accreditation of building practitioners:
C. During the month of September 2006 the auditor provided
a detailed report to the Attorney-General but it is desirable that
a further audit be conducted to determine certain matters not
covered in that report:
[Bill 21] 3
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D. Pursuant to a subsequent deed signed on behalf of the
Crown and the Company on 25 September 2006, the Company
has surrendered its authorisation, has paid an amount of
$143 239 to the Crown and has transferred certain property
constituting its business assets to the Crown:
E. Consequent on the amendments made by the Building
Amendment Act 2006, it is just and equitable to make
provision, if the further audit so indicates, for an amount paid
to the Company by accredited building practitioners to be
repaid to them and for another amount to be paid to the Crown
to be applied in the administration of a scheme of accreditation
provided by the Building Act 2000:
F. On 20 March 2007 the Company was placed under external
administration.
Be it therefore enacted by His Excellency the Governor of
Tasmania, by and with the advice and consent of the
Legislative Council and House of Assembly, in Parliament
assembled, as follows:
1. Short title
This Act may be cited as the Building
Practitioners Accreditation (Miscellaneous
Provisions) Act 2008.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
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3. Interpretation
(1) In this Act, unless the contrary intention
appears
"accredited building practitioner" means a
person who is or was accredited under
Part 5 of the Building Act 2000;
"auditor" means a registered company
auditor appointed under section 7;
"authorisation" means the authorisation to
accredit building practitioners conferred
on the Company under the original
agreement;
"Company" means Tasmanian Compliance
Corporation Pty Ltd;
"original agreement" means the agreement
referred to in paragraph A of the
Preamble;
"original members" means the persons who
on 17 November 2006 were members of
the Company;
"registered company auditor" has the same
meaning as in the Corporations Act 2001
of the Commonwealth;
"scheme" means the scheme of accreditation
provided by the Building Act 2000;
"subsequent deed" means the deed referred
to in paragraph D of the Preamble.
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(2) In this Act, a reference to a member, director or
employee of the Company is to be read as
including a reference to a former member,
director or employee of the Company.
4. Objects of Act
The objects of this Act are
(a) to provide for an audit of the financial
records of the Company; and
(b) if the audit so indicates, to require the
Company
(i) to repay a certain amount for the
benefit of certain accredited
building practitioners; and
(ii) to pay a further certain amount to
the Director of Building Control
for the administration of the
Building Act 2000; and
(c) if the Company is wound up or unable to
pay any amount required under this Act,
to transfer the Company's liability under
this Act to its original members.
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5. Application of Act
Except as expressly provided in this Act, this
Act does not derogate from the Building Act
2000 or any other written law.
6. Act binds Crown
This Act binds the Crown in right of Tasmania
and, so far as the legislative power of Parliament
permits, in all its other capacities.
7. Appointment of auditor
(1) As soon as practicable after the commencement
of this Act, the Minister must appoint a
registered company auditor to audit the financial
records of the Company in accordance with this
Act.
(2) The Minister must deliver to the auditor all
papers, books and documents in the possession
of the Crown relating to the grant of the
authorisation or in any other respect relating to
the Company.
8. Duty of Company to forward financial records to
auditor
(1) For the purposes of the audit required by
section 7, the auditor may, by notice in writing
given to a member, director or employee of the
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Company require that member, director or
employee to forward to the auditor, within such
time as may be determined by the auditor, any
documents constituting the financial records of
the Company.
(2) A member, director or employee of the
Company who fails to comply with a
requirement under subsection (1) is guilty of an
offence and is liable on summary conviction to a
fine not exceeding 50 penalty units.
(3) In a prosecution for an offence under
subsection (2), it is a defence if the person
charged can show that at the relevant time the
required documents of the Company were not in
the possession or custody of, or under the control
of, that person, unless the lack of possession,
custody or control arose from a wrongful act or
omission on the part of that person.
9. Audit of Company's financial records
(1) The auditor must audit the financial records of
the Company and, within 14 days after
completion of the audit, provide a report of the
audit to the Minister.
(2) The audit is to be conducted for the purpose of
determining the total of
(a) all amounts paid to the Company by
accredited building practitioners before
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1 July 2006 for the purpose of
accreditation
(i) which have been retained by the
Company, or which the auditor
considers should have been
retained by the Company, for the
purpose of dealing with
complaints; or
(ii) which have been retained by the
Company for any other
contingency
and which have not been actually applied
for a purpose specified in
subparagraph (i) or (ii); and
(b) all amounts paid to the Company by
accredited building practitioners on or
after 1 July 2006.
(3) The auditor must include in the report
(a) a certificate stating the amount which, in
the opinion of the auditor, fairly
represents the cost of administering the
scheme by the Company for the period
commenced on 1 July 2006 and ended on
31 October 2006; and
(b) a certificate stating the amount which, in
the opinion of the auditor fairly
represents the estimated cost of
administering the scheme by the Crown
for the period commenced on
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1 November 2006 and ending on
30 June 2007 in respect of the accredited
building practitioners affected by the
administration of the scheme referred to
in paragraph (a); and
(c) a certificate stating the amount of any
payments made by the Company that
were inconsistent with any
representations made to the Crown for
the purposes of the authorisation.
(4) The auditor must include in the report a
statement whether, in his or her opinion, the
Company failed at any time to provide a
merchantable service for the accredited building
practitioners as required by the terms of the
authorisation and its obligations under the
Building Act 2000.
(5) A statement under subsection (4) is to give the
auditor's opinion of whether the persons who
paid a fee for that service should be entitled to a
refund of that fee and, if so, the amount that
should be so repaid.
(6) If the auditor considers it desirable to do so, the
auditor may also include in the report a
statement as to how any amount referred to in
subsection (5) should be distributed between
classes of accredited building practitioners.
(7) For the purposes of this section, the auditor is to
take into account
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(a) the amount paid to the Crown by the
Company under the subsequent deed;
and
(b) the value to the Crown of the Company
having performed its other obligations
under that deed.
(8) The auditor must also include in the report a
certificate stating the amount which, in the
opinion of the auditor, fairly represents the total
of the amount referred to in subsection (7)(a) and
the value referred to in subsection (7)(b).
10. Powers of auditor
For the purposes of this Act, the auditor has all
the powers conferred under Part 3 of the
Financial Management and Audit Act 1990 as if
references in that Part to the Auditor-General
were references to the auditor and the
application of that Part extends to the auditor
accordingly.
11. Submission of draft report to Company
(1) The auditor must submit a draft of the report to
each member, director and employee of the
Company and invite him or her to comment in
writing on the report within a period of 28 days.
(2) The final report is to contain a copy of any
comments made under subsection (1).
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12. Publication of report
(1) The Minister must cause a copy of the report to
be laid upon the table of each House of
Parliament within 10 sitting-days of that House
after it is received by him or her.
(2) If, in the opinion of the Solicitor-General, the
report contains any material relating to any
criminal proceedings which have not been
finally disposed of and publication of that part of
the report might prejudice the proper course of
those criminal proceedings
(a) the Minister is to delete that material
from the report; and
(b) the Minister is to publish the full report
as provided by subsection (1) when all
the criminal proceedings have been
finally disposed of.
13. Debts due to Crown by Company
(1) If the total amount determined under
section 9(2), after deducting the total of
(a) the amount stated in the auditor's
certificate referred to in section 9(3)(a);
and
(b) any amount referred to in section 9(5);
and
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(c) the amount stated in the certificate
referred to in section 9(8)
is more than zero, that total amount is taken to
be for all legal purposes money had and received
by the Company for the use of the Crown and is
recoverable as such by the Crown in any court of
competent jurisdiction.
(2) If the auditor determines an amount under
section 9(5), that amount is taken to be for all
legal purposes money had and received by the
Company for the use of accredited building
practitioners in accordance with any statement
made by the auditor under section 9(6) and is
recoverable as such by the Crown in any court of
competent jurisdiction.
(3) Any amount recovered under subsection (2) is to
be paid into an account in the Special Deposits
and Trust Fund to be disbursed to accredited
building practitioners in accordance with any
directions given by the Minister, having regard
to any statement made by the auditor under
section 9(6).
14. Representative liability of original members
(1) If
(a) the Company has been wound up before
payment of any debt arising under
section 13; or
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(b) the assets of the Company are for any
other reason insufficient to satisfy that
debt
the liability of the Company under section 13
becomes, by force of this section, a liability of
the original members but the liability of each
member is not to exceed the amount which he
would have been entitled to receive as such a
member if the Company had been wound up on
17 November 2006.
(2) Any liability arising under subsection (1) is to be
in substitution for liability arising under
section 13.
15. Power of Minister to require payment by Company
or original members
On compliance with section 9 by the auditor
(a) the Minister may, by notice in writing
served on the Company, require payment
of any amounts recoverable under
section 13(1) or (2); and
(b) the Minister may, by notice in writing
served on the original members, require
payment of any amount recoverable
under section 14(1).
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16. Duty of Director of Building Control
Any amount paid to the Crown on account of
any liability arising under section 13(1) is to be
applied by the Director of Building Control in
the administration of the scheme on and after
1 November 2006.
17. Power of Supreme Court to set aside dispositions
If the Supreme Court is satisfied that, on or after
17 November 2006
(a) the Company or any of its members or
directors has made a disposition of
property for the purpose of, or which
may have the effect of, frustrating the
operation of this Act; or
(b) any such disposition has taken effect by
operation of law
and, if the Court is satisfied that it is just and
equitable to do so, the Court may, on the
application of any person who in the opinion of
the Court has a sufficient interest in the matter
(c) set aside the disposition; and
(d) make any consequential orders that the
Court considers just and equitable.
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18. Expenses of administration of this Act
The money required for the purposes of this Act
is to be paid from money to be appropriated by
the Parliament for the purpose.
19. Regulations
The Governor may make regulations for the
purposes of this Act.
20. Administration of Act
Until provision is made in relation to this Act by
order under section 5 of the Administrative
Arrangements Act 1990
(a) the administration of this Act is assigned
to the Minister for Justice and Workplace
Relations; and
(b) the department responsible to the
Minister for Justice and Workplace
Relations in relation to the administration
of this Act is the Department of Justice.
16 Government Printer, Tasmania