Building and Development Certifiers Act 2018 (NSW)

Building and Development Certifiers Act 2018 No 63 An Act to provide for the registration of persons carrying out certification work and the accreditation of persons carrying out other regulated work; to repeal the Building Professionals Act 2005 and other legislation; to amend other Acts and instruments consequentially; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Building and Development Certifiers Act 2018. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act The objects of this Act are as follows— (a) to provide for the registration of persons to carry out certification work and the accreditation of persons to carry out other regulated work, (b) 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, (c) to provide for the approval of certain bodies corporate as accreditation authorities to exercise accreditation functions under this Act, (d) to ensure appropriate scrutiny and review of actions taken by persons exercising functions under this Act and the certification legislation, (e) to provide a framework to permit the continuous improvement of the carrying out of certification work. 4 Definitions (1) 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— (a) this Act, (b) the Environmental Planning and Assessment Act 1979, (c) Part 4 of the Strata Schemes Development Act 2015, (d) Division 5 of Part 2 of the Swimming Pools Act 1992, (e) an Act, or provision of an Act, prescribed by the regulations. certification work means the following— (a) 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, (b) the determination of an application for a strata certificate within the meaning of the Strata Schemes Development Act 2015, (c) 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, (d) the exercise of any other function of a registered certifier under the certification legislation or under another Act or law, (e) 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)— (a) an offence against the certification legislation, (b) an offence with respect to the carrying out of certification work or work authorised to be carried out under an equivalent authorisation, (c) an offence with respect to a failure to comply with a condition of registration or an equivalent authorisation, (d) an offence involving fraud or dishonesty, (e) 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. (2) Notes included in this Act do not form part of this Act. (3) 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. Part 2 Registration of certifiers Division 1 Preliminary 5 Certification work requires registration (1) A person must not carry out certification work unless— (a) the person is registered and the registration authorises the person to carry out the certification work, or (b) the person is otherwise lawfully authorised to carry out the certification work. (2) The following persons are not required to be registered to carry out certification work— (a) a local council, (b) the Minister administering the Environmental Planning and Assessment Act 1979 or a delegate of the Minister. (3) A person must not falsely represent that the person— (a) can carry out certification work, or (b) 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). 6 Registration of persons to carry out certification works (1) The Secretary may, by granting registration under this Part, authorise a person to carry out certification work. (2) Registration authorises only the class of certification work authorised by the class of registration granted. (3) Registration is subject to conditions of registration. (4) The regulations may prescribe different classes of registration that authorise the carrying out of different classes of certification work. (5) The Secretary may issue a certificate of registration to a person who is registered under this Part. 7 Grounds for finding that a person is not a suitable person to carry out certification work (1) A person is not a suitable person to carry out certification work if— (a) the person is disqualified from being registered, or (b) 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 (c) the person does not have the qualifications, skills, knowledge and experience required to carry out the certification work, or (d) 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 (e) the person is a mentally incapacitated person, or (f) 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 (g) the Secretary is of the opinion that the person is not a suitable person to carry out the certification work. (2) 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— (a) 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, (b) 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, (c) the person (including, if the person is a body corporate, a director of the body corporate) is an undischarged bankrupt, (d) 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, (e) 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, (f) 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, (g) 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, (h) a circumstance prescribed by the regulations. Division 2 Application for registration 8 Application for registration (1) 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. (2) An application must— (a) be in a form approved by the Secretary, and (b) 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). (3) The regulations may provide for a fee to be paid for an application for the grant of registration. (4) The Secretary may require the fee to accompany the application. (5) If the Secretary considers it necessary to do so, the Secretary may require either or both of the following— (a) further documents or information to be provided by the applicant, (b) 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. (6) 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. 9 Secretary may obtain information from third parties (1) The Secretary may, by written notice, require an applicant or a close associate of the applicant— (a) to authorise a person described in the notice— (i) to provide information specified in the notice that is relevant to the investigation of the application, or (ii) 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 (b) 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. (2) 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. (3) A person who complies with a requirement of a notice under this section does not on that account incur a liability to another person. 10 Grant or refusal of registration (1) The Secretary may, on application, grant or refuse registration. (2) The Secretary may grant registration in a class that the Secretary considers appropriate even if the application is for a different class of registration. (3) The Secretary may refuse registration— (a) if the application for registration does not comply with a requirement imposed by or under this Act, or (b) if the applicant is not a suitable person to carry out the certification work authorised by the registration, or (c) on a ground prescribed by the regulations. (4) The Secretary is to give the applicant written notice of a decision to grant or refuse registration. (5) 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. 11 Duration of registration (1) 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. (2) Registration has no effect during a period in which registration is suspended. 12 Variation of registration (1) 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). (2) A variation includes the imposition of new conditions on registration, the substitution of a condition, or the removal or amendment of a condition. (3) The regulations may make further provision for or with respect to the variation of registration, including— (a) applications for variation, and (b) fees for applications for variation. Division 3 Conditions of registration 13 Conditions of registration (1) Registration is subject to the following conditions— (a) conditions prescribed by this Act or the regulations, (b) conditions imposed by the Secretary. (2) The Secretary may impose conditions on registration— (a) at the time of the grant of registration, or (b) at another time by variation of the registration. (3) A provision of this Division that authorises a type of condition to be imposed on registration does not prevent other types of conditions being imposed, or limit the matters that can be provided for by conditions, except where expressly provided for by this Division. (4) In this Division— registered certifier includes a former registered certifier. 14 Compliance with standards or methodologies The conditions of registration may require the registered certifier to carry out certification work in accordance with specified standards or methodologies, including but not limited to standards or methodologies prepared by the Secretary. 15 Conditions may provide that authorisation takes effect later The conditions of registration may provide that an authorisation conferred by the registration does not take effect until the end of a specified period or the happening of a particular event or the occurrence of a specified state of affairs. Division 4 Suspension or cancellation of registration 16 Grounds for suspension or cancellation of registration Each of the following constitutes grounds for suspending or cancelling registration— (a) the registered certifier is not a suitable person to carry out the certification work authorised by the registration, (b) the registered certifier is not entitled to be registered, (c) the registered certifier has applied for the registration to be suspended or cancelled, (d) it is a condition of the registration that the registered certifier may carry out certification work only as an employee of a local council and the registered certifier has ceased to be so employed or has ceased to be employed in a position that includes the function of carrying out certification work, (e) the registration was granted in error, (f) the Secretary has determined to suspend or cancel the registration under Part 4, (g) a ground prescribed by the regulations. 17 Suspension of registration (1) The Secretary may, by written notice to a registered certifier, suspend the registration of the registered certifier if the Secretary is satisfied that there are grounds for the suspension of the registration. (2) Notice of the suspension must specify— (a) the date or time from which suspension takes effect, and (b) the period of suspension, and (c) the grounds for the suspension. 18 Cancellation of registration (1) The Secretary may, by written notice to a registered certifier, cancel the registration of the registered certifier if the Secretary is satisfied that there are grounds for the cancellation of registration. (2) Notice of the cancellation must specify— (a) the date or time from which cancellation takes effect, and (b) the grounds for the cancellation. 19 Suspension or cancellation may be subject to conditions (1) Registration may be suspended or cancelled unconditionally or subject to the conditions that the Secretary determines to impose. (2) The conditions may include (but are not limited to) conditions to which the registration was subject immediately before it was suspended or cancelled. (3) The Secretary may, by written notice given to the former registered certifier, attach new conditions to, or vary or revoke existing conditions of, the suspension or cancellation of the registration. Division 5 Miscellaneous 20 Offence of contravening condition A registered certifier (including a former registered certifier) who contravenes any of the following is guilty of an offence— (a) a condition of the registration (other than a condition for which a different maximum penalty is prescribed), (b) a condition of a suspension or cancellation of registration. Maximum penalty—300 penalty units. 21 Registration not transferable Registration is not transferable. 22 Offence of lending certificate registration (1) A registered certifier must not let out, hire or lend a certificate of registration to another person or permit another person to use the certificate. Maximum penalty—600 penalty units (in the case of a body corporate) or 300 penalty units (in any other case). (2) The Secretary must cancel the registration of a registered certifier who is convicted of an offence against this section. 23 Voluntary surrender or suspension of registration (1) A registered certifier may apply to the Secretary for a cancellation or suspension of registration. (2) An application must— (a) be in a form approved by the Secretary, and (b) include or be accompanied by any information or evidence required by the Secretary to assess the application. (3) The regulations may provide for a fee to be paid for an application for the cancellation or suspension of registration. (4) The Secretary may require the fee to accompany the application. (5) A reference in this section to an application for suspension of registration is taken to include a reference to an application to extend, cancel or vary a suspension imposed under this section. 24 Review by Civil and Administrative Tribunal A person aggrieved by any of the following decisions may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision— (a) a decision of the Secretary to refuse to grant registration, (b) a decision of the Secretary to suspend or cancel registration, (c) a decision of the Secretary to refuse an application to vary registration, (d) a decision of the Secretary to impose any condition on registration, or on the suspension or cancellation of registration, (e) a decision of the Secretary to vary registration, (f) a decision of the Secretary to refuse an application for the cancellation or suspension of registration. 25 Recovery of unpaid fees Any fee payable under this Part may be recovered by the Secretary as a debt in a court of competent jurisdiction. Part 3 Requirements on certifiers Division 1 Insurance or other arrangement 26 Registered certifiers to be indemnified (1) A registered certifier must not— (a) carry out certification work, or (b) hold out that the registered certifier is adequately insured with respect to certification work, unless the registered certifier is adequately insured with respect to the certification work. Maximum penalty—100 penalty units. (2) For the purposes of this section, a registered certifier is adequately insured with respect to certification work if the registered certifier— (a) is indemnified by insurance that complies with the regulations against any liability to which the registered certifier may become subject as a result of carrying out the certification work, or (b) is part of some other arrangement approved by the regulations that provides indemnity against the liability. (3) It is a condition of registration that a registered certifier must provide to the Secretary, in the time specified by the Secretary, information that the Secretary may require to satisfy the Secretary that the registered certifier is adequately insured with respect to certification work. (4) This section does not apply to certification work carried out on behalf of a local council (whether within or outside the local council's area) by a registered certifier in the course of the registered certifier's employment by the local council. 27 Regulations under Division Without limiting the matters for which the regulations may provide with respect to insurance or any other arrangement, the regulations may make provision for or with respect to the following— (a) the persons or bodies who may provide indemnity, (b) the period for which a registered certifier is to be indemnified, (c) the amount for which a registered certifier is to be indemnified, (d) the risks for which a registered certifier is to be indemnified, (e) the nature and terms of any insurance or arrangement, (f) the obligations on a person or body who provides indemnity, (g) the issue of indemnity for liability incurred by a person who was formerly a registered certifier. Division 2 Conflicts of interest 28 Conflicts of interest (1) A registered certifier must not carry out the following certification work if the registered certifier has a conflict of interest in the certification work— (a) carry out any inspection, (b) issue any certificate (other than a compliance certificate issued under Part 6 of the Environmental Planning and Assessment Act 1979 by a certifier who is not issuing the certificate as a principal certifier), (c) carry out any certification work prescribed by the regulations. Maximum penalty—300 penalty units. (2) The regulations may create exemptions to subsection (1). (3) The Secretary may, on the written application of a registered certifier, exempt the registered certifier from subsection (1) with respect to specified certification work or a class of certification work. (4) An exemption under this section may be unconditional or subject to conditions. (5) A registered certifier who has a conflict of interest in certification work does not commit an offence under this section if an exemption applies to the certification work and the registered certifier carries out the certification work in accordance with any conditions to which that exemption is subject. 29 Meaning of "conflict of interest" (1) For the purposes of this Division, a registered certifier has a conflict of interest in certification work— (a) if a reasonable person would conclude that— (i) the registered certifier has a private interest with respect to the certification work, and (ii) the private interest comes into conflict with, and may affect, the duty of a registered certifier to act in the public interest when undertaking the certification work, or (b) in any other circumstances prescribed by the regulations. (2) Without limiting subsection (1) (a), a registered certifier has a private interest with respect to certification work if the registered certifier is any of the following— (a) a person who is obtaining the benefit of the certification work, (b) a person who has a pecuniary interest in the development or building to which the certification work relates, Note— The definition of building in the Environmental Planning and Assessment Act 1979 (which because of section 4 (3) of this Act has the same meaning in this Act) includes part of a building, a structure (for example a swimming pool fence) or part of a structure. (c) a person who has provided professional services (other than services that are certification work) with respect to the construction or design of the development or building to which the certification work relates, (d) a person who has provided professional services (other than services that are certification work) with respect to a development application for the development or building to which the certification work relates, (e) if the certification work is to be carried out in the area of a local council other than on behalf of the local council—a person who is a councillor or an employee of the local council, (f) a person who has a relationship (whether family, personal, employment, or business) with a person referred to in paragraph (a), (b), (c), (d) or (e), (g) any person prescribed by the regulations. 30 Meaning of having a pecuniary interest (1) For the purposes of this Division, a registered certifier has a pecuniary interest in the development or building if there is a reasonable likelihood or expectation of appreciable financial gain or loss to the registered certifier, or to a person with whom the registered certifier has a relationship (whether family, personal, employment, or business). (2) However, a registered certifier does not have a pecuniary interest if— (a) the interest is so remote or insignificant that it could not reasonably be regarded as likely to influence any decision the registered certifier might make with respect to the certification work, or (b) the interest is merely the lawful payment for the carrying out of certification work. Division 3 General requirements 31 Requirements relating to contracts for certification work (1) It is a condition of registration that a registered certifier must not carry out certification work for a person unless the work is carried out under a written contract between— (a) the person and a council, if the person has appointed the council to carry out the certification work, or (b) the person and the registered certifier or the employer of the registered certifier, in any other case. (2) A contract under this section must comply with any requirements prescribed by the regulations. (3) Without limiting subsection (2), the regulations may make provision for or with respect to the following— (a) requiring contracts to contain provisions to the effect of those prescribed by the regulations, (b) providing that contracts must not contain provisions to the effect of those prescribed by the regulations, (c) requiring specified particulars or information to be included in contracts or to accompany contracts, for example, an information document published by the Secretary or another person or body, (d) the time or times at which fees and charges under contracts are to be paid. 32 Code of conduct (1) The regulations may prescribe a code of conduct for registered certifiers. (2) The code of conduct may specify requirements relating to the carrying out of certification work or the operation of a business that carries out certification work. (3) The regulations may create offences for failing to comply with the code of conduct or provisions of the code of conduct. 33 Principal certifier to notify client of certain changes (1) A person who is appointed as the principal certifier with respect to development must give written notice to the person who made the appointment, of— (a) the suspension or cancellation of the appointed person's registration, or (b) any change in the registration (including its conditions) that would prevent the appointed person from exercising the person's functions as principal certifier for the development. Maximum penalty—50 penalty units. (2) A person who is required to give notice under this section must give the notice within 7 days after the person becomes aware of the matters to which the notice relates. (3) A local council is not required to give a notice under this section. 34 Registered certifier to notify employer of certain changes (1) A person who, in the course of the person's employment, carries out certification work must give written notice to the person's employer, of— (a) the suspension or cancellation of the person's registration, or (b) any change in the registration (including its conditions) that would prevent the person from carrying out the certification work. Maximum penalty—50 penalty units. (2) A person who is required to give notice under this section must give the notice within 7 days after the person becomes aware of the matters to which the notice relates. 35 Registered certifier to notify Secretary of certain events (1) A registered certifier must notify the Secretary in writing of the following events within 7 days after becoming aware of the event— (a) an equivalent authorisation held by the registered certifier being suspended or cancelled (other than at the request of the registered certifier), (b) proceedings being instituted against the registered certifier (including, if the registered certifier is a registered body corporate, proceedings being instituted against a director of the body corporate) for a relevant offence, (c) the registered certifier (including, if the registered certifier is a registered body corporate, a director of the body corporate) being found guilty of a relevant offence, (d) the registered certifier (including, if the registered certifier is a registered body corporate, a director of the body corporate) being investigated in another Australian jurisdiction by a government agency or a body that issues an equivalent authorisation with respect to the carrying out of work authorised to be carried out under an equivalent authorisation or a failure to comply with an equivalent authorisation, (e) the registered certifier (including, if the registered certifier is a registered body corporate, a director of the body corporate) becoming bankrupt or making a composition, arrangement or assignment for