New South Wales: 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 the benefit of creditors, (f) the registered certifier no longer being covered by insurance that is required with respect to the carrying out of certification work by or on behalf of the registered certifier, (g) if the registered certifier is a registered body corporate—the registered body corporate becoming the subject of a winding up order or having a controller or administrator appointed, (h) if the registered certifier is a registered body corporate—the registered body corporate having no director who is registered in a class that would authorise the director to carry out the certification work authorised to be carried out by the registration of the body corporate, (i) any event prescribed by the regulations. Maximum penalty—50 penalty units. (2) A registered certifier must notify the Secretary in writing of any change required to the particulars recorded in the register with respect to the registered certifier (other than an event that the Secretary has already been notified of) within 14 days of the registered certifier becoming aware of the need for the change. Maximum penalty—10 penalty units. 36 Return of certificate of registration (1) The Secretary may at any time by written notice require a person whose registration has been suspended, varied or cancelled to return to the Secretary within a specified time a certificate of registration issued to the person. (2) The notice may be included as part of a statement of a decision by the Secretary to take disciplinary action against the person. (3) A person must comply with a notice under this section. Maximum penalty—40 penalty units in the case of a body corporate and 20 penalty units in any other case. 37 Responsibilities of individuals acting on behalf of registered body corporate or council A registered director of a registered body corporate or a registered individual who carries out certification work on behalf of a registered body corporate or a local council— (a) is not excused from compliance with any of the person's obligations under this or any other Act with respect to any certification work done by the person on behalf of or in the name of the body corporate or local council, and (b) is subject to the same requirements with respect to the carrying out of the functions of a registered certifier on behalf of the local council or the registered body corporate as if he or she were carrying out the work on his or her own behalf. Division 4 Additional requirements for registered body corporate 38 Registered directors must ensure certification work carried out lawfully Each registered director of a registered body corporate must ensure the following with respect to certification work carried out by or on behalf of the body corporate— (a) that the body corporate complies with the requirements of this and any other Act with respect to the carrying out of the certification work and that appropriate management systems are in place to ensure that the body corporate complies with those requirements, (b) that the certification work is allocated to, and carried out by, a registered individual whose registration authorises the individual to carry out that work, (c) that the person for whom the certification work is carried out is kept informed as to the identity of the registered individual who is carrying out the certification work. Maximum penalty—300 penalty units. 39 Registered directors must report certain conduct Each registered director of a registered body corporate must report to the Secretary conduct by any of the following persons as soon as practicable after becoming aware of the conduct if the director suspects, or should reasonably suspect, that the conduct is a ground for taking disciplinary action against the person under Part 4— (a) the body corporate, (b) any other registered director of the body corporate, (c) any registered individual who is carrying out certification work on behalf of the body corporate. Maximum penalty—300 penalty units. 40 Registered body corporate must ensure certification work carried out by individual (1) A registered body corporate must ensure that any certification work that is carried out on behalf of the body corporate is carried out by a registered individual whose registration authorises the individual to carry out that work. Maximum penalty—1,000 penalty units. (2) A reference in this section to certification work that is carried out on behalf of a body corporate includes a reference to certification work carried out on behalf of a local council that has engaged the body corporate to carry out that work on its behalf. 41 Registered body corporate with insufficient registered directors (1) A registered body corporate must not carry out any certification work during any period during which it does not have at least 1 suitably qualified director. Maximum penalty—1,000 penalty units. (2) A registered body corporate that has not had for a continuous period of 3 months at least 1 suitably qualified director must not carry out any certification work until— (a) it has a suitably qualified director, and (b) it has notified the Secretary in writing that it now has a suitably qualified director. Maximum penalty—1,000 penalty units. (3) In this section— suitably qualified director, in relation to certification work, means a director who is a registered individual whose registration authorises the individual to carry out that work. Division 5 Miscellaneous offences relating to certification work 42 Improper influence with respect to carrying out certification work (1) A registered certifier must not, on an understanding that the registered certifier will act otherwise than impartially in the carrying out of any certification work, seek or accept, or offer or agree to accept, any benefit of any kind, whether on the registered certifier's own behalf or on behalf of any other person. (2) A person must not, on an understanding that a registered certifier will act otherwise than impartially in the carrying out of any certification work, give, or offer or agree to give, any benefit of any kind, whether to the registered certifier or to any other person. Maximum penalty—10,000 penalty units or imprisonment for 2 years, or both. 43 Representing work is work requiring a registered certifier A person must not, for the purposes of securing work for the person or for any other person, represent that work is work that can be carried out only by a registered certifier unless the work is certification work. Maximum penalty—300 penalty units. 44 Knowingly issuing a false certificate (1) A registered certifier must not issue any of the following certificates if the registered certifier knows that the certificate is false or misleading in a material particular— (a) a complying development certificate under the Environmental Planning and Assessment Act 1979 or a certificate referred to in section 6.4 of that Act, (b) a strata certificate within the meaning of the Strata Schemes Development Act 2015, (c) a certificate of compliance under Division 5 of Part 2 of the Swimming Pools Act 1992. Maximum penalty—10,000 penalty units or imprisonment for 2 years, or both. (2) A person cannot be prosecuted under this section in respect of a certificate if proceedings have been brought under section 4.31 or 6.32 of the Environmental Planning and Assessment Act 1979 for an order declaring the certificate to be invalid and the Land and Environment Court has refused to make the order. Part 4 Disciplinary action against certifiers 45 Grounds for taking disciplinary action The Secretary may take disciplinary action against a registered certifier on any one or more of the following grounds— (a) the registered certifier has engaged in conduct in connection with the carrying out of certification work that has fallen short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent registered certifier, (b) the registered certifier has contravened the certification legislation, whether or not the registered certifier is prosecuted or convicted for the contravention, (c) the registered certifier has contravened a law of this or any other Australian jurisdiction (whether or not the contravention is an offence and whether or not the registered certifier is prosecuted or convicted for the contravention) with respect to any of the following— (i) the carrying out of certification work or work authorised to be carried out under an equivalent authorisation, (ii) registration or an equivalent authorisation, (iii) fraud or dishonesty, (d) the registered certifier has failed to comply with a statutory or other duty, or a contractual obligation, imposed on the registered certifier by or in accordance with a law of this or any other Australian jurisdiction with respect to the carrying out of certification work or work authorised to be carried out under an equivalent authorisation, (e) the registered certifier has carried out certification work in a partial manner or in a manner that is not in the public interest, (f) the registered certifier has wilfully disregarded matters to which the registered certifier is required to have regard in the carrying out of certification work, (g) the registered certifier has failed to comply with a condition of the registration, (h) the registered certifier has breached an undertaking given by the registered certifier, (i) the registered certifier has failed to comply with an order of the Secretary or the Tribunal, (j) the registered certifier has failed to comply with a direction or requirement under Part 7, (k) the registered certifier has wilfully misled or obstructed the Secretary or an authorised officer in the exercise of any function under this Act, (l) the registered certifier has engaged in improper or unethical conduct that indicates that the registered certifier is not a fit and proper person to carry out certification work, (m) any other ground prescribed by the regulations. 46 Functions exercised on behalf of council or body corporate A reference in this Part (however expressed) to the carrying out of certification work or work authorised to be carried out under an equivalent authorisation by a registered certifier includes a reference to the carrying out of certification work or work authorised to be carried out under an equivalent authorisation on behalf of a local council (of this or any other Australian jurisdiction) or a body corporate that is registered or holds an equivalent authorisation. 47 Notice to show cause (1) This section applies if the Secretary is of the opinion that there may be grounds for taking disciplinary action under this Part against a registered certifier. (2) The Secretary may serve a written notice on the registered certifier, inviting the certifier to show cause why the certifier should not be dealt with under this Part. (3) The notice must state the grounds on which the registered certifier is required to show cause and must specify the period, being at least 14 days, during which it must be done. (4) A registered certifier on whom a notice to show cause has been served may, within the period specified in the notice, make submissions to the Secretary, orally or in writing, and provide evidence with respect to the matters to which the notice relates. (5) The Secretary may conduct any inquiry or make any investigation with respect to the matters to which the notice relates and the submissions are made, if any, and the evidence adduced, if any, by or on behalf of the registered certifier with respect to those matters that the Secretary thinks fit. (6) The Secretary must, before determining whether or not to take disciplinary action under this Part against a person, take into consideration any submission made by the person in accordance with this section. (7) However, the Secretary may take immediate disciplinary action without taking any steps under this section if the Secretary is of the opinion that it is in the public interest to take immediate action. 47A Power to suspend registration when notice to show cause served (1) The Secretary may, by written notice to a registered certifier, suspend the registration of the registered certifier in accordance with Part 2 pending a determination by the Secretary of whether to take disciplinary action under this Act against the holder if— (a) a notice to show cause has been served on the registered certifier under section 47, and (b) in the Secretary's opinion, there are reasonable grounds to believe that— (i) the registered certifier has engaged in conduct that constitutes grounds for suspension of the registration, and (ii) it is likely the registered certifier will continue to engage in the conduct, and (iii) there is a danger a person or persons may suffer significant harm, or significant loss or damage, as a result of the conduct unless action is taken urgently. (2) The Secretary may suspend a registration under this section only if satisfied that the grounds for disciplinary action specified in the notice to show cause would, if established, justify the suspension or cancellation of the registration. (3) A suspension must not be imposed for a period of more than 60 days after the notice to show cause is served, but may, if the Secretary remains of the opinion referred to in subsection (1)(b), be extended, by written notice, for further periods of 60 days. (4) The period of initial suspension must be specified in the notice imposing the suspension. (5) The Secretary is not required to give a person an opportunity to be heard before taking action against the person under this section. (6) The Secretary may revoke a suspension under this section at any time by written notice to the suspended person. (7) This section does not limit or otherwise affect another power to suspend a registration or licence under the Fair Trading Act 1987, section 79A. 48 Disciplinary action that may be taken by Secretary (1) The Secretary may, if satisfied that one or more of the grounds for taking disciplinary action against a registered certifier has been established, do any one or more of the following— (a) determine to take no further action against the registered certifier, (b) caution or reprimand the registered certifier, (c) make a determination requiring the registered certifier to pay to the Secretary, as a penalty, an amount not exceeding $220,000 (in the case of a body corporate) or $110,000 (in the case of an individual) within a specified time, (d) impose a condition on the registration of the registered certifier, including a condition requiring the registered certifier to undertake specified education or training relating to a particular type of work or business practice within a specified time, (e) suspend or cancel the registration of the registered certifier in accordance with Part 2, (f) disqualify the registered certifier, either temporarily or permanently, from being registered or being registered in a particular class. (2) In determining the disciplinary action to take, the Secretary— (a) must take into account any other disciplinary action taken against the person under this Part, and (b) may take into account any written undertaking that the person proposes to give under Part 8. (3) The Secretary is to provide a written statement of a decision made under this section to the person concerned as soon as is reasonably practicable after the decision is made. (4) The statement of a decision must specify— (a) the decision that has been made, and (b) if relevant, the date or time on which the decision takes effect, and (c) the grounds for the decision. 49 Review by Civil and Administrative Tribunal A person aggrieved by the following decisions of the Secretary may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997— (a) a decision under section 47A to suspend the registration of a registered certifier pending a determination of whether to take disciplinary action, (b) a decision to take disciplinary action under this part. 50 Enforcement of monetary penalties and payment of costs (1) When a decision of the Secretary to impose a monetary penalty has taken effect and the amount required to be paid has not been paid to the Secretary— (a) registration held by the person required to pay is taken to be suspended until that amount is paid to the Secretary, and (b) that amount may be recovered by the Secretary as a debt in any court of competent jurisdiction. (2) The Secretary may agree in writing to extend the time for payment by a person of any amount referred to in subsection (1) and, in that case, that subsection does not have effect with respect to the person during the extension of time. (3) The Secretary's failure to enter into an agreement under this section cannot be reviewed by the Tribunal in an application for an administrative review made under this Act. 51 Liability for offences not affected (1) A decision to take disciplinary action against a person under this Part does not affect the liability of the person for any offence against a provision of this or any other Act or of a regulation made under this or any other Act. (2) The Secretary is not prevented from taking disciplinary action under this Part merely because the registered certifier concerned is subject to criminal or civil proceedings that relate to the same matters or incident to which the disciplinary action relates. Part 5 Accreditation of persons carrying out regulated work 52 Meaning of "regulated work" In this Act, regulated work means the following— (a) the carrying out of work as an accredited practitioner under the Environmental Planning and Assessment Act 1979, (b) any other work declared by this or any other Act to be regulated work. 53 Regulated work requires accreditation (1) A person must not carry out regulated work unless the person holds an accreditation that authorises the person to carry out the regulated work or the person is otherwise lawfully authorised to carry out the regulated work. (2) A person must not falsely represent that the person— (a) can carry out regulated work, or (b) holds an accreditation of a particular class. Maximum penalty—1,000 penalty units (in the case of a body corporate) or 300 penalty units (in any other case). 54 Accreditation of persons to carry out regulated work (1) An accreditation authority may, by granting accreditation under this Part, authorise a person to carry out regulated work. (2) An accreditation authorises only the class of regulated work authorised by the class of accreditation granted. (3) An accreditation is subject to any conditions of the accreditation. (4) An accreditation is suspended during any period where— (a) there is no regulating accreditation authority with respect to the accreditation, or (b) there is a regulating accreditation authority with respect to the accreditation but the approval of the regulating accreditation authority is suspended. (5) The regulations may prescribe different classes of accreditation that authorise the carrying out of different classes of regulated work. 55 Regulations may authorise registered certifiers to carry out regulated work The regulations may authorise a registered certifier who is registered in a particular class to carry out regulated work or specified regulated work and in those circumstances, the regulated work is taken to be certification work when carried out by a registered certifier. Part 6 Approval of accreditation authorities Division 1 Accreditation authorities 56 Accreditation authority—meaning (1) For the purposes of this Act, an accreditation authority means a body corporate for the time being approved by the Secretary under this Part to exercise the functions of an accreditation authority. Note— Section 110 provides that the Secretary may exercise the functions of an accreditation authority. (2) A reference in this Act to an accreditation authority, with respect to any function of an accreditation authority, includes a reference to a body corporate approved by the Secretary to exercise the functions of an accreditation authority only if the accreditation authority is approved to exercise the function concerned. (3) An accreditation authority that grants an accreditation to a person under this Act is the regulating accreditation authority with respect to that accreditation. (4) The Secretary may, in writing, direct an accreditation authority to be the regulating accreditation authority with respect to an existing accreditation on and from a specified day and on that day— (a) the accreditation authority becomes the regulating accreditation authority with respect to that accreditation for the remaining period of that accreditation, and (b) the accreditation authority that was the regulating accreditation authority with respect to that accreditation immediately before that day ceases to be the regulating accreditation authority. (5) A direction of the Secretary under this section may specify particular accreditations or all accreditations belonging to a particular class. 57 Functions of an accreditation authority (1) For the purposes of this Act, the functions of an accreditation authority are as follows— (a) to accredit persons to carry out regulated work in accordance with the accreditation authority's approved accreditation scheme, (b) with respect to the holders of accreditations for which the accreditation authority is the regulating accreditation authority, to do the following in accordance with the accreditation authority's approved accreditation scheme— (i) to ensure that those persons comply with the requirements of their accreditation, (ii) to investigate possible failures by those persons to comply with those requirements, (iii) to exercise disciplinary functions where a failure to comply is found, including, if necessary, by suspending or cancelling a person's accreditation, (c) any other function imposed on an accreditation authority by this or any other Act or prescribed by the regulations. (2) Subject to the regulations and the conditions or limitations of its approval as an accreditation authority, the manner in which an accreditation authority exercises its functions is to be determined by the accreditation authority. 58 Person must be approved to exercise functions of accreditation authority (1) A person must not exercise any function of an accreditation authority unless the person is an accreditation authority that is able to exercise that function. (2) A person must not falsely represent that the person can— (a) grant an accreditation, or (b) grant an accreditation of a particular class, or (c) exercise any other function of an accreditation authority. (3) An accreditation authority must not falsely represent that an accreditation granted by the accreditation authority authorises the holder to carry out particular regulated work. Maximum penalty—1,000 penalty units (in the case of a body corporate) or 300 penalty units (in any other case). 59 Approval of accreditation authority to exercise functions (1) The Secretary may, by instrument in writing, approve any of the following bodies corporate to exercise the functions of an accreditation authority with respect to the accreditation of persons for the purposes of this Act— (a) a company registered under the Corporations Act 2001 of the Commonwealth, (b) an association within the meaning of the Associations Incorporation Act 2009 or an incorporated association created under the legislation of another Australian jurisdiction. (2) Approval may be unconditional, or subject to conditions or limitations. (3) In particular, an approval may be limited to issuing a specified class of accreditation. 60 Effect of approval (1) A body corporate that is approved to exercise the functions of an accreditation authority may exercise those functions in accordance with this Act. (2) Nothing in this Act authorises or requires an accreditation authority to act in contravention of the conditions or limitations of the accreditation authority's approval as an accreditation authority. 61 Accreditation authority approval guidelines (1) The Secretary must adopt guidelines relating to the approval of bodies corporate as accreditation authorities for the purposes of this Act. (2) The guidelines may make provision for or with respect to the following— (a) the suitability of a body corporate to be approved as an accreditation authority, including the qualifications, skills, knowledge and experience required, (b) the insurance required to be held by an accreditation authority, (c) the matters to be set out in an accreditation scheme, (d) any other matters prescribed by the regulations. (3) The Secretary is to make the guidelines publicly available. (4) The Secretary may amend or replace the guidelines. (5) The Secretary may adopt different guidelines with respect to the approval of accreditation authorities that grant different classes of accreditation. (6) A reference in this Act to the accreditation authority approval guidelines with respect to the approval of a body corporate as an accreditation authority is, if the Secretary has adopted different guidelines with respect to different classes of accreditation, a reference to the guidelines relevant to the class of accreditation that the body corporate would grant if it were to be approved. Division 2 Approval procedure 62 Application for approval (1) A body corporate may apply to the Secretary for a grant of approval to exercise the functions of an accreditation authority. (2) An application must— (a) be in a form approved by the Secretary, and (b) set out the applicant's proposed accreditation scheme, and (c) include or be accompanied by any information or evidence of a kind prescribed by the regulations, and (d) include or be accompanied by any other information or evidence that the Secretary reasonably requires to assess the application. (3) The regulations may provide for a fee to be paid for an application for the grant of approval. (4) The Secretary may require the fee to accompany the application. (5) If an application for a grant of renewal of approval is duly made to the Secretary before the expiry of approval, approval is taken to continue in force until the Secretary notifies the applicant of a decision to grant or refuse the application. 63 Grant or refusal of approval (1) The Secretary may, on application, grant or refuse approval to exercise the functions of an accreditation authority. (2) On the granting of an approval, the applicant's proposed accreditation scheme becomes, for the purposes of this Act, the accreditation scheme of the accreditation authority and is taken to form part of the approval. (3) The Secretary may refuse an approval to exercise the functions of an accreditation authority— (a) if the application for an approval does not comply with any requirement imposed by or under this Act, or (b) if the Secretary is of the opinion that it is not in the public interest to approve the application, or (c) if the Secretary is of the opinion that the applicant is not a suitable person to be approved as an accreditation authority, or (d) if the Secretary is of the opinion that the proposed accreditation scheme does not comply with the requirements of this Act, the regulations or the accreditation authority approval guidelines, or (e) if the Secretary is not satisfied that the applicant has met all the requirements for the grant of an approval set out in the accreditation authority approval guidelines, or (f) on any other ground prescribed by the regulations. (4) A decision about the suitability of a person for approval may be made having regard to any of the following— (a) any matter prescribed by the regulations, (b) any other circumstances that the Secretary considers relevant. (5) The Secretary is to give the applicant written notice of a decision to grant or refuse approval. (6) If the Secretary fails to give an applicant for approval notice of a decision to grant or refuse approval within the period prescribed by the regulations, the Secretary is taken to have refused approval. (7) The Secretary is to cause notice of any approval granted to be published in the Gazette. 64 Duration of approval (1) An approval to exercise the functions of an accreditation authority remains in force for a period of 1, 3 or 5 years as specified by the Secretary in the notice by which approval is granted, unless sooner cancelled. (2) An approval has no effect during any period in which the approval is suspended. 65 Variation of approval (1) The Secretary may, at any time, by written notice to a person who has been approved to exercise the functions of an accreditation authority, vary the approval of the person (including the accreditation scheme or any conditions of approval imposed by the Secretary). (2) A variation includes the imposition of new conditions on an approval, the substitution of a condition, or the omission or amendment of a condition. (3) The regulations may make further provision for the variation of approval, including— (a) applications for variation, and (b) fees for applications for variation. Division 3 Conditions of approval 66 Conditions of approval (1) An approval to exercise the functions of an accreditation authority is subject to the following conditions— (a) any conditions prescribed by this Act or the regulations, (b) any conditions imposed by the Secretary. (2) The Secretary may impose conditions on an approval— (a) at the time of the grant of the approval, or (b) at any other time by variation of the approval. 67 Condition that functions are exercised in accordance with approved accreditation scheme It is a condition of approval as an accreditation authority that the functions of the accreditation authority will be exercised only in accordance with the accreditation scheme of the accreditation authority. 68 Condition that functions are exercised only by individuals notified to Secretary It is a condition of approval as an accreditation authority that the functions of the accreditation authority will be exercised only by individuals who are notified to the Secretary as individuals who are to exercise those functions for the accreditation authority.