Building and Development Certifiers Act 2018

This Act is the Building and Development Certifiers Act 2018.

This Act commences on a day or days to be appointed by proclamation.

The objects of this Act are as follows—

to provide for the registration of persons to carry out certification work and the accreditation of persons to carry out other regulated work,

to recognise that certification work is an important public function with potential impacts on public health, safety and amenity and to ensure that it is carried out impartially, ethically and in the public interest,

to provide for the approval of certain bodies corporate as accreditation authorities to exercise accreditation functions under this Act,

to ensure appropriate scrutiny and review of actions taken by persons exercising functions under this Act and the certification legislation,

to provide a framework to permit the continuous improvement of the carrying out of certification work.

In this Act—

accreditation authority—see section 56.

accreditation authority approval guidelines means the guidelines adopted under section 61.

accreditation scheme of an accreditation authority—see section 63 (2).

certificate of registration means a certificate of registration issued under section 6.

certification legislation means the following Acts or provisions of Acts and the regulations under those Acts or provisions—

this Act,

the Environmental Planning and Assessment Act 1979,

Part 4 of the Strata Schemes Development Act 2015,

Division 5 of Part 2 of the Swimming Pools Act 1992,

an Act, or provision of an Act, prescribed by the regulations.

certification work means the following—

the exercise of a function of a certifier (including a principal certifier) specified in section 6.5 of the Environmental Planning and Assessment Act 1979,

the determination of an application for a strata certificate within the meaning of the Strata Schemes Development Act 2015,

the inspection of swimming pools under Division 5 of Part 2 of the Swimming Pools Act 1992 and the issuing of certificates of compliance and notices under that Division,

the exercise of any other function of a registered certifier under the certification legislation or under another Act or law,

any other work of a kind prescribed by the regulations,

but does not include work of a kind that is excluded from this definition by the regulations.

class of accreditation means a class of accreditation prescribed under section 54 (5).

class of registration means a class of registration prescribed under section 6 (4).

close associate has the same meaning as it has in the Home Building Act 1989.

Department means the department in which this Act is administered.

equivalent authorisation means a licence, certificate, accreditation, registration or other authorisation or qualification that is issued or conferred under the laws of another jurisdiction and that authorises the holder to carry out work that is similar to certification work.

function includes a power, authority or duty, and exercise a function includes perform a duty.

functions of an accreditation authority—see section 57.

grant registration, approval or accreditation includes grant a renewal or restoration of registration, approval or accreditation.

register means the register maintained by the Secretary under section 102.

registered body corporate means a body corporate that is a registered certifier.

registered certifier means a person who is registered under this Act and whose registration is in force.

registered director means a registered individual who is a director of a registered body corporate.

registered individual means an individual who is a registered certifier.

registration means registration granted under this Act and in force.

regulated work—see section 52.

regulating accreditation authority—see section 56.

relevant offence means the following offences (whether committed in this or another Australian jurisdiction)—

an offence against the certification legislation,

an offence with respect to the carrying out of certification work or work authorised to be carried out under an equivalent authorisation,

an offence with respect to a failure to comply with a condition of registration or an equivalent authorisation,

an offence involving fraud or dishonesty,

an offence or class of offences prescribed by the regulations.

Secretary means the Secretary of the Department.

Tribunal means the Civil and Administrative Tribunal.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

Notes included in this Act do not form part of this Act.

Words and expressions used in this Act (but not defined in this section) have the same meanings as they have in the Environmental Planning and Assessment Act 1979.

A person must not carry out certification work unless—

the person is registered and the registration authorises the person to carry out the certification work, or

the person is otherwise lawfully authorised to carry out the certification work.

The following persons are not required to be registered to carry out certification work—

a local council,

the Minister administering the Environmental Planning and Assessment Act 1979 or a delegate of the Minister.

A person must not falsely represent that the person—

can carry out certification work, or

is registered or is registered in a particular class.

Maximum penalty—1,000 penalty units (in the case of a body corporate) or 300 penalty units (in any other case).

The Secretary may, by granting registration under this Part, authorise a person to carry out certification work.

Registration authorises only the class of certification work authorised by the class of registration granted.

Registration is subject to conditions of registration.

The regulations may prescribe different classes of registration that authorise the carrying out of different classes of certification work.

The Secretary may issue a certificate of registration to a person who is registered under this Part.

A person is not a suitable person to carry out certification work if—

the person is disqualified from being registered, or

the person (including, if the person is a body corporate, a director of the body corporate) is a natural person who is under 18 years of age, or

the person does not have the qualifications, skills, knowledge and experience required to carry out the certification work, or

the person (including, if the person is a body corporate, a director of the body corporate) is not a fit and proper person to carry out the certification work, or

the person is a mentally incapacitated person, or

the person is a body corporate and no director of the body corporate is registered in a class of registration that would authorise the director to carry out the certification work, or

the Secretary is of the opinion that the person is not a suitable person to carry out the certification work.

The Secretary may form an opinion that a person is not a suitable person to carry out certification work in any one or more of the following circumstances—

the person (including, if the person is a body corporate, a director of the body corporate) has, within the previous 10 years, been convicted of a relevant offence,

the Independent Commission Against Corruption, within the previous 10 years, has made a finding or has been of the opinion that the person (including, if the person is a body corporate, a director of the body corporate) has engaged in corrupt conduct,

the person (including, if the person is a body corporate, a director of the body corporate) is an undischarged bankrupt,

the person has contravened a requirement imposed by or under this Act or a requirement imposed with respect to certification work under another Act or law,

an equivalent authorisation of the person has been suspended or cancelled (other than at the person’s request) under the law of another Australian jurisdiction,

the person is disqualified (other than on the grounds of not residing in that jurisdiction or on the grounds that the person is a body corporate) from holding an equivalent authorisation under the law of another Australian jurisdiction,

a close associate of the person who would not be a fit and proper person to be registered exercises a significant influence over the person or the operation and management of the person’s business,

a circumstance prescribed by the regulations.

A person may apply to the Secretary for a grant of registration.

Note.

The definition of grant registration in section 4 (1) includes grant a renewal or restoration of registration.

An application must—

be in a form approved by the Secretary, and

include or be accompanied by information or evidence that the Secretary reasonably requires to assess the application.

Note.

Part 5A of the Crimes Act 1900 contains offences relating to the making of false or misleading applications or providing false or misleading information or documents. Those offences have a maximum penalty of imprisonment for 2 years or a fine of $22,000 (or both).

The regulations may provide for a fee to be paid for an application for the grant of registration.

The Secretary may require the fee to accompany the application.

If the Secretary considers it necessary to do so, the Secretary may require either or both of the following—

further documents or information to be provided by the applicant,

in the case of an applicant who is an individual, that the applicant attend an interview, undertake an oral or written examination or provide a demonstration of the applicant’s skills.

If an application for the grant of a renewal of registration is duly made to the Secretary before the expiry of registration, the registration is taken to continue in force until the Secretary notifies the applicant of a decision to grant or refuse the application.

The Secretary may, by written notice, require an applicant or a close associate of the applicant—

to authorise a person described in the notice—

to provide information specified in the notice that is relevant to the investigation of the application, or

to produce, in accordance with directions in the notice, the records relevant to the investigation of the application that are specified in the notice and to permit examination of the records, the taking of extracts from them and the making of copies of them, or

to furnish to the Secretary the authorities and consents that the Secretary directs for the purpose of enabling the Secretary to obtain information (including financial and other confidential information) from other persons concerning the applicant or close associate.

If a requirement made under this section is not complied with, the Secretary may refuse to consider the application concerned while the non-compliance continues.

A person who complies with a requirement of a notice under this section does not on that account incur a liability to another person.

The Secretary may, on application, grant or refuse registration.

The Secretary may grant registration in a class that the Secretary considers appropriate even if the application is for a different class of registration.

The Secretary may refuse registration—

if the application for registration does not comply with a requirement imposed by or under this Act, or

if the applicant is not a suitable person to carry out the certification work authorised by the registration, or

on a ground prescribed by the regulations.

The Secretary is to give the applicant written notice of a decision to grant or refuse registration.

If the Secretary fails to give an applicant for registration notice of a decision to grant or refuse registration within the period prescribed by the regulations, the Secretary is taken to have refused to grant registration.

Registration remains in force for a period of 1, 3, or 5 years as specified by the Secretary in the notice by which registration is granted, unless sooner cancelled.

Registration has no effect during a period in which registration is suspended.

The Secretary may, at any time, by written notice to a registered certifier, vary the registration of the registered certifier (including conditions of registration imposed by the Secretary).

A variation includes the imposition of new conditions on registration, the substitution of a condition, or the removal or amendment of a condition.

The regulations may make further provision for or with respect to the variation of registration, including—

applications for variation, and

fees for applications for variation.