BUILDING INDUSTRY FAIRNESS (SECURITY OF PAYMENT) ACT 2017

Table of Provisions

• Long Title

CHAPTER 1 - PRELIMINARY

PART 1 - INTRODUCTION

• 1 Short title
• 2 Commencement
• 3 The main purpose of Act

PART 2 - APPLICATION AND OPERATION OF ACT

• 4 Act binds all persons

PART 3 - INTERPRETATION

• 5 Definitions
• 6 Subcontracts, subcontractors and subcontracted work

CHAPTER 2 - STATUTORY TRUSTS

PART 1 - PRELIMINARY

• 7 Purpose of chapter
• 8 Definitions for chapter
• 8A Meaning of project trust work
8B. (Repealed)
• 9 Meaning of contract price
• 9A Meaning of project trust subcontract

PART 2 - PROJECT TRUSTS

Division 1 - Preliminary

• 10 Definitions for part
• 10A Who is a related entity
• 10B When amount liable to be paid to subcontractor
• 10C References to particular terms in this part

Division 2 - Project trusts

• 11 What is a project trust
• 11A Trustee and beneficiaries of project trust
• 11B What are the beneficial interests in a project trust

Division 3 - Contracts requiring project trusts

• 12 When project trust required for a contract
13. (Repealed) Subdivision 2 - Eligible contracts
• 14 Eligibility of contract for project trust when contract entered into
• 14A Eligibility of contract for project trust when contract amended
• 14B Multiple contracts at same site or adjacent sites
• 14C Subcontracts with related entities require project trusts
• 14D Prescribed contracts require project trusts
• 14E Prescribed subcontracts require project trusts
Subdivision 3 - Exempt contracts
• 15 Subcontracts generally
• 15A Contracts with particular entities
• 15B Contracts between the State and a state authority
• 15C Contracts for small scale residential construction work
• 15D Contracts for maintenance work
• 15E Contracts for professional design, advisory or contract administration work
• 15F Contracts with less than 90 days until practical completion
16. (Repealed)

Division 4 - Project trust administration

• 17 Establishment of project trust
Subdivision 2 - Project trust accounts
• 18 Contracted party must open project trust account
• 18A Restrictions for project trust account
• 18B Notice of project trust account’s opening, closing or name change
• 18C Change of financial institution
Subdivision 3 - Payments to project trust account
• 19 All payments from contracting party to be deposited in project trust account
• 19A Limited purposes for which money may be deposited in project trust account
Subdivision 4 - Payments from project trust account
• 20 All payments to subcontractor beneficiaries to be paid from project trust account
• 20A Limited purposes for which money may be withdrawn from project trust account
• 20B Order of priority
• 20C Insufficient amounts available for payments
Subdivision 5 - Ending project trust
• 21 Ending project trust
• 21A Unauthorised dissolution of project trust
22. (Repealed)

Division 5 - Information sharing

• 23 Notice of project trust before entering subcontracts
• 23A Subcontractor beneficiary to be informed of particular withdrawals
• 23B Subcontractor beneficiary may request particular information

Division 6 - Obligations of contracting party

• 24 Contracting party to report related entities
• 24A Contracting party to report failure to establish project trust

Division 7 - Other matters

• 25 Contracted party to report related entities
• 25A Limited liability of contracting party
• 25B No assignment of entitlement by contracted party

PART 3 - RETENTION TRUSTS

Division 1 - Preliminary

• 30 Definitions for part
• 30A References to particular terms in this part

Division 2 - Retention trusts

• 31 What is a retention trust
• 31A Who are the trustee and beneficiaries of a retention trust
• 31B What are the beneficial interests in a retention trust

Division 3 - When retention trusts required

• 32 When retention trust required

Division 4 - Retention trust administration

• 33 Establishment of retention trust
• 33A Charge over retention amounts held in retention trust
Subdivision 2 - Retention trust accounts
• 34 Contracting party withholding retention amount must open retention trust account
• 34A Restrictions for retention trust account
• 34B Notice of retention trust account’s opening, closing or name change
• 34C Change of financial institution
Subdivision 3 - Payments to retention trust account
• 35 All retention amounts withheld must be deposited in retention trust account
• 35A Limited purposes for which money may be deposited in retention trust account
Subdivision 4 - Payments from retention trust account
• 36 Limited purposes for which money may be withdrawn from retention trust account
• 36A All retention amounts withheld to be released from retention trust account
36B. (Repealed) 36C. (Repealed) Subdivision 5 - Ending retention trust
• 37 Ending retention trust
• 37A Unauthorised dissolution of retention trust
38. (Repealed) 39. (Repealed)

Division 5 - Information sharing

• 40 Notice of retention trust before withholding retention amount
• 40A Beneficiary to be informed of transactions affecting retention amount
• 40B Beneficiary may request particular information

Division 6 - Compulsory training

• 41 Retention trust training
42. (Repealed) 43. (Repealed)

Division 7 - Other matters

• 43A No assignment of entitlement by contracting party

Division 8 - (Repealed)

PART 4 - COMMON PROVISIONS FOR PROJECT TRUSTS AND RETENTION TRUSTS

Division 1 - Preliminary

• 50 Definitions for part

Division 2 - Powers, obligations and restrictions for trustees

• 51 Trustee to cover shortfalls
• 51A Amounts in trust account unavailable for trustee’s debts
• 51B No power of trustee to invest
• 51C Trustee not entitled to payment for administration of trust or fees
• 51D Interest earned on amounts held in trust account
• 51E Employment or engagement of agents
• 51F Power to delegate
• 51G Right of trustee to apply to Supreme Court for directions

Division 3 - Trust records

• 52 Trust records
52A. (Repealed)

Division 4 - Oversight powers

• 53 Register of project trusts and retention trusts
• 53A Power to require particular information
• 53B Power to issue directions affecting trust accounts
• 53C Right of commissioner to apply to Supreme Court for directions
Subdivision 2 - Special investigators
• 53D Power to appoint special investigator
• 53E Obstructing special investigator
• 53F Impersonating special investigator
Subdivision 3 - Other matters
• 53G Protection from civil liability

Division 5 - Exclusion of auditors

• 54 Definitions for division
• 54A Grounds for excluding persons from undertaking trust account reviews and preparing account review reports
• 54B Show cause notice
• 54C Representations about show cause notice
• 54D Ending show cause process without further action
• 54E Excluding persons from undertaking trust account reviews and preparing account review reports
• 54F Commissioner may publish information about exclusions

Division 6 - Financial institutions

• 55 Approval of financial institutions
• 55A Financial institutions not subject to particular obligations and liabilities
• 55B Reports, records and information
• 55C Directions to financial institutions

Division 7 - Application of particular Acts

• 56 Application of Personal Property Securities Act 2009 (Cwlth)
• 56A Application of Trust Accounts Act 1973 and Trusts Act 1973
• 56B Equity and court’s jurisdiction preserved

Division 8 - Auditing and reporting

• 57 Engaging auditor for review of trust account
• 57A Account review report
• 57B Trust records to be given to auditor
• 57C Reporting serious breaches

Division 9 - Other matters

• 58 Commissioner may give redacted information to professional bodies
• 58A Liability of executive officer for offence committed by corporation against executive liability provision
• 58B Failures and defects do not affect validity

PART 5 - GUIDELINES FOR CHAPTER

• 59 Chief executive may issue guidelines for chapter
60. (Repealed)

PART 6 - (Repealed)

CHAPTER 3 - PROGRESS PAYMENTS

PART 1 - PRELIMINARY

Division 1 - Application and operation of chapter

• 61 Application of chapter
• 62 Effect of giving notice of claim for subcontractors’ charges
• 63 Act does not limit claimant’s other rights

Division 2 - Interpretation

• 64 Definitions for chapter
• 65 Meaning of construction work
• 66 Meaning of related goods and services
• 67 Meaning of reference date
• 68 Meaning of payment claim
• 69 Meaning of payment schedule

PART 2 - RIGHT TO PROGRESS PAYMENTS

• 70 Right to progress payments
• 71 Amount of progress payment
• 72 Valuation of construction work and related goods and services
• 73 Due date for payment
• 74 Effect of ‘pay when paid’ provisions

PART 3 - CLAIMING PROGRESS PAYMENTS

• 75 Making payment claim
• 76 Responding to payment claim
• 77 Consequences of failing to give payment schedule
• 78 Consequences of failing to pay claimant

PART 4 - ADJUDICATION OF DISPUTED PROGRESS PAYMENTS

• 79 Application for adjudication
• 80 When adjudicator ineligible to adjudicate
• 81 Appointment of adjudicator
• 82 Adjudication response
• 83 Time for making adjudication response
• 84 Adjudication procedures
• 85 Time for deciding adjudication application
• 86 Extending time for deciding adjudication application
• 87 Valuation of work etc. in later adjudication application
• 88 Adjudicator’s decision
• 89 Adjudicator may correct clerical mistakes etc.
• 90 Respondent required to pay adjudicated amount
• 91 Adjudication certificate
• 92 Consequences of not paying adjudicated amount
• 93 Filing of adjudication certificate as judgment debt
• 94 Claimant may make new application in certain circumstances
• 95 Adjudicator’s fees
• 96 Deciding fees payable by claimant and respondent
• 97 Withdrawing from adjudication

PART 4A - REQUIRING HIGHER PARTY TO WITHHOLD PAYMENT

• 97A Definitions for part
• 97B Higher party may be required to retain amount owed to respondent
• 97C Obligation of higher party to retain amount payable to respondent
• 97D Contravention of requirement by higher party
• 97E Protections for higher party
• 97F Respondent to provide information about higher party
• 97G Charge over amount retained
• 97H Other rights of claimant not affected

PART 5 - SUSPENDING WORK

• 98 Claimant’s right to suspend work

PART 6 - COURT PROCEEDINGS FOR DEBT RECOVERY

• 99 Notice required before starting particular proceedings
• 100 Proceedings to recover unpaid amount as debt

PART 6A - CHARGE OVER PROPERTY

• 100A Definitions for part
• 100B Registering charge over property for unpaid adjudicated amount
• 100C Expiry of charge
• 100D Release of charge
• 100E Application to set aside charge
• 100F Enforcing a charge
• 100G Orders court may make
• 100H Effect of court order

PART 7 - MISCELLANEOUS

• 101 Effect of pt 3 on civil proceedings
• 102 Service of notices

CHAPTER 4 - SUBCONTRACTORS’ CHARGES

PART 1 - PRELIMINARY

Division 1 - Application and operation of chapter

• 103 Application to particular domestic building work

Division 2 - Interpretation

• 104 Definitions
• 105 Meaning of work
• 106 References to amount payable under contract and to completion of work specified in subcontract
• 107 When work specified in contract completed

PART 2 - RIGHT TO SUBCONTRACTOR’S CHARGE

• 108 Contracts to which this part applies
• 109 Charges in favour of subcontractors
• 110 Limits on amount recoverable under subcontractor’s charge
• 111 Subcontractor’s charge valid although provision of the subcontract still to be complied with
• 112 Damages etc. not covered by subcontractor’s charge
• 113 All money paid in reduction of contract price generally subject to subcontractor’s charge
• 114 Assignments etc. of no effect against subcontractor’s charge
• 115 Insufficient money available for claims
• 116 Assignment and transmission of subcontractor’s charge
• 117 No subcontractor’s charge over money held in trust under a project trust or retention trust
• 118 Limit of 1 claim for work

PART 3 - INFORMATION TO BE GIVEN TO SUBCONTRACTOR

• 119 Request for information about building contract or security
• 120 Damages payable for failure to give information

PART 4 - CLAIMING SUBCONTRACTOR’S CHARGE

Division 1 - Preliminary

• 121 Application of part

Division 2 - Action by subcontractor

• 122 Notice of claim
• 123 Copy of notice of claim to contractor
• 124 Copy of notice of claim to the holder of a security
• 125 Withdrawing a notice of claim

Division 3 - Action by person given notice of claim

• 126 Person given notice of claim must retain money
• 127 Person given notice of claim must comply with request from security holder about s 130 or 131

Division 4 - Action by contractor given copy of notice of claim

• 128 Contractor given copy of notice of claim must respond

Division 5 - Payment of claim

• 129 Payment of amount claimed
• 130 Use of security for benefit of subcontractor if contractor accepts liability for all claims
• 131 Use of security for benefit of subcontractor if contractor does not accept liability for all claims
• 132 Authority of court for security
• 133 Particular subcontractor securities of no effect

PART 5 - ENFORCING SUBCONTRACTOR’S CHARGE

• 134 Recovering amount claimed
• 135 Enforcing subcontractor’s charge on behalf of other subcontractors
• 136 Proceedings for subcontractor’s charge
• 137 Claims of charge relating to retention amount not limited

PART 6 - PROTECTION AGAINST SUBCONTRACTOR’S CHARGE

• 138 When person prejudicially affected by a claim
• 139 Application to court by person prejudicially affected
• 140 Vexatious claims

PART 7 - MISCELLANEOUS

• 141 Effect of payment made under order of the court
• 142 Court jurisdiction
• 143 Consolidation of actions
• 144 Power to proceed in absence of person against whom proceedings brought
• 145 Costs
• 146 Appeal
• 147 Qualified persons
• 148 Right to recover debt generally preserved

CHAPTER 5 - ADMINISTRATION

PART 1 - REGISTRY AND STAFF

Division 1 - Registry

• 149 Registry

Division 2 - Registrar

• 150 Adjudication registrar
• 151 Disqualification from appointment
• 152 Term of appointment
• 153 Conditions of appointment
• 154 Registrar’s functions and powers
• 155 Registrar’s policy
• 156 Delegation by registrar

Division 3 - Other matters

• 157 Annual report on operation of chapter and registry

PART 2 - ADJUDICATORS

Division 1 - Preliminary

• 158 Definitions for chapter

Division 2 - Registration of adjudicators

• 159 Application for registration as adjudicator
• 160 Consideration of application
• 161 Suitability of person to be registered
• 162 Request for further information
• 163 Decision on application for registration
• 164 Term of registration
• 165 Conditions of registration
• 166 Form of certificate of registration

Division 3 - Renewals of registrations of adjudicators

• 167 Applications for renewal of registration
• 168 Request for further information
• 169 Registration taken to be in force while application for renewal is considered

Division 4 - Suspension or cancellation of registrations of adjudicators

• 170 Grounds for suspension or cancellation
• 171 Show cause notice
• 172 Representations about show cause notices
• 173 Ending show cause process without further action
• 174 Suspension or cancellation
• 175 Immediate suspension of registration
• 176 Effect of suspension or cancellation of registration of adjudicator

Division 5 - Internal review of registration decisions

• 177 Applying to registrar for internal review
• 178 Internal review of original decision
• 179 Stay of operation of original decision

Division 6 - External review of registration decisions

• 180 Applying to QCAT for external review

Division 7 - Code of conduct

• 181 Code of conduct for adjudicators

Division 8 - Other provisions about adjudicators

• 182 Adjudicator must comply with registration conditions
• 183 Surrender of registration
• 184 Replacement of certificate of registration
• 185 Adjudicator must give information to registrar
• 186 Protection from liability for adjudicators
• 187 False or misleading statements
• 188 False or misleading documents

PART 3 - AUDITS

• 189 Approved audit program
• 189A Supply of financial records and other documents under approved audit program or for other reason
• 189B Evidential immunity for individuals complying with commissioner’s requirement

CHAPTER 6 - LEGAL PROCEEDINGS

PART 1 - OFFENCES

• 190 Proceedings for offences
• 191 Enforcement action to comply with prescribed guidelines
• 192 Payment of penalties and fines

PART 2 - EVIDENCE

• 193 Application of part
• 194 Appointments and authority
• 195 Evidentiary aids
• 196 Proof of signature unnecessary

PART 3 - CIVIL LIABILITY FOR OFFICIALS

• 197 Protection from liability

CHAPTER 7 - MISCELLANEOUS

• 198 Approved forms
• 198A Approved ways to give particular documents to commissioner or registrar
• 199 Delegations
• 200 Contracting out prohibited
• 200A Review of Act
• 200B Act does not prevent early payment
• 200C Giving official false or misleading information
• 200D False or misleading information in particular documents
• 200E Confidentiality of information
• 201 Regulation-making power

CHAPTER 8 - TRANSITIONAL AND REPEAL

PART 1A - PROVISIONS FOR TRANSITIONAL ARRANGEMENTS BEFORE REPEAL

• 201A References in ch 2 relating to progress payments
• 201B No subcontractors’ charges over money held in trust
• 201C Repeal of transitional regulation

PART 1 - REPEAL

• 202 Acts repealed

PART 2 - TRANSITIONAL PROVISIONS FOR THE REPEALED BUILDING AND CONSTRUCTION INDUSTRY PAYMENTS ACT 2004

• 203 Definitions for part
• 204 Continuation of existing appointments and employment
• 205 Unfinished matters for existing payment claims to be dealt with under the repealed Act
• 205A References in ch 2 relating to progress payments
• 206 References to repealed Act

PART 3 - TRANSITIONAL PROVISIONS FOR THE REPEALED SUBCONTRACTORS’ CHARGES ACT 1974

• 207 Definitions for part
• 208 Preservation of existing entitlement to subcontractors’ charges
• 209 Unfinished matters for existing subcontractors’ charges to be dealt with under the repealed Act
• 210 References to repealed Act

PART 4 - OTHER TRANSITIONAL PROVISION

• 211 (Expired)

CHAPTER 8A - TRANSITIONAL PROVISIONS FOR BUILDING INDUSTRY FAIRNESS (SECURITY OF PAYMENT) AND OTHER LEGISLATION AMENDMENT ACT 2020

• 211A Definitions for chapter
• 211B Continued application of former chapter 2 for particular building contracts
• 211C Transitioning to new scheme
211D. (Repealed)
• 211E Transitional regulation-making power

CHAPTER 8B - TRANSITIONAL PROVISIONS FOR BUILDING AND OTHER LEGISLATION AMENDMENT ACT 2022

• 212 Definitions for chapter
• 213 Existing trust account reviews
• 214 Existing obligations to report serious breaches

CHAPTER 8C - TRANSITIONAL PROVISIONS FOR BUILDING INDUSTRY FAIRNESS (SECURITY OF PAYMENT) AND OTHER LEGISLATION AMENDMENT ACT 2024

• 215 Definitions for chapter
• 215A Retention amounts
• 215B Changes affecting review of trust account

CHAPTER 8D - VALIDATION PROVISIONS FOR RESIDENTIAL TENANCIES AND ROOMING ACCOMMODATION AND OTHER LEGISLATION AMENDMENT ACT 2024

• 215C Definitions for chapter
• 215D Validation of non-compliance with former section 79(3)
• 215E Validation of adjudication decision made before commencement—registry summary given to respondent
• 215F Declaration of court made before commencement that adjudication void is of no effect
• 215G Adjudication application must be re-decided if adjudicator decided before commencement that adjudicator did not have jurisdiction
• 215H Continuation of adjudication if adjudication not completed before commencement
• 215I No compensation payable by State

CHAPTER 9 - AMENDMENT OF THIS AND OTHER ACTS

PART 1 - AMENDMENT OF THIS ACT

Division 3 - (Uncommenced)

• 216 (Uncommenced)

Division 4 - (Uncommenced)

• 217 (Uncommenced)
• 218 (Uncommenced)
219. (Repealed) 220. (Repealed) 221. (Repealed) 222. (Repealed) 223. (Repealed) 224. (Repealed) 225. (Repealed) 226. (Repealed) 227. (Repealed) 228. (Repealed) 229. (Repealed) 230. (Repealed) 231. (Repealed)
• SCHEDULE 2