Occupational Licensing Act 2005 (Tas)

Occupational Licensing Act 2005 An Act to ensure that contractors, practitioners and other persons engaged in certain occupations, trades or callings are appropriately qualified, licensed and regulated to perform their work safely and in accordance with established benchmarks, to promote safety, to provide for the investigation of incidents in those activities, to amend the Building Act 2000 and the Electricity Industry Safety and Administration Act 1997 and to repeal the Plumbers and Gas-fitters Registration Act 1951 [Royal Assent 24 November 2005] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Occupational Licensing Act 2005 . 2. Commencement The provisions of this Act commence on a day or days to be proclaimed. 3. Interpretation (1) In this Act, unless the contrary intention appears – Administrator means the person appointed by the Minister as the Administrator of Occupational Licensing under section 10 ; approved means approved by the Administrator; approved authority means a local authority, statutory authority or any body or organisation, whether incorporated or not, that is approved by the Administrator for the purposes of this Act in respect of an occupation, trade or calling to which this Act applies; authorised officer means – (a) the Administrator; or (b) a person who is appointed under section 16 as an authorised officer; Board means the Occupational Licensing Advisory Board established under section 14 ; body corporate includes a corporation within the meaning of the Corporations Act; building services licence means – (a) a licence issued and in force in accordance with Division 3A of Part 4 ; or (b) a licence held by a person by virtue of holding deemed registration; building services provider means a person who is the holder of a building services licence; building services work means any prescribed work that is – (a) prescribed in the regulations as building services work; and (b) not excluded from the application of this Act by the regulations; code of practice means a code of practice established under section 53 ; continuing professional development has a meaning given by section 4 ; contractor means the holder of a contractor's licence, or a person who is the holder of a contractor's licence by virtue of holding deemed registration, who – (a) enters into a contract to carry out any prescribed work; or (b) employs another person to carry out any prescribed work; or (c) has the management or control of any other person carrying out any prescribed work; contractor's business means a business involving entering into a contract or contracts to carry out prescribed work; contractor's licence means – (a) a contractor's licence issued and in force in accordance with Division 2 of Part 4 ; or (b) a licence held by a person by virtue of holding deemed registration; deemed registration means an entitlement to automatic deemed registration, within the meaning of the Mutual Recognition Act 1992 of the Commonwealth; defective work means – (a) any work that does not comply with a code of practice; or (b) any work where the materials, tools or equipment used are faulty or unsuitable for the purposes of the work; or (c) any work that has been left in an incomplete and unsafe condition; or (d) any other work that is determined to be defective work under a code of practice or in accordance with the regulations; director has the same meaning as in section 9 of the Corporations Act; document means any record of information, and includes – (a) anything on which there is writing; and (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and (d) a map, plan, drawing or photograph – and a reference in this Act to a document includes a reference to – (e) any part of the document; and (f) any copy, reproduction or duplicate of the document or of any part of the document; and (g) any part of such a copy, reproduction or duplicate; fit and proper, in the case of a contractor, practitioner, building services provider or other person who is subject to this Act, means fit and proper as defined in a code of practice relevant to that contractor, practitioner, building services provider or other person; Fund means the Occupational Licensing Administration Fund established under section 96 ; licence means – (a) an authority granted and in force under this Act to carry out any prescribed work; or (b) a document that evidences that authority; or (c) any such authority or document continued in force under this Act; or (d) an entitlement to carry out any prescribed work by virtue of holding deemed registration; or (e) a document that evidences the holding of that entitlement to hold deemed registration; licensed entity means a body corporate, partnership or council that holds a building services licence in accordance with section 37C ; licensed person, of a licensed entity, means – (a) in the case of a body corporate that is a licensed entity, a director of the body corporate who holds a building services licence as an individual; or (b) in the case of a partnership that is a licensed entity, a partner of the partnership who holds a building services licence as an individual; or (c) in the case of a council that is a licensed entity, a person employed or engaged by the council who holds a building services licence as an individual; National Construction Code means the National Construction Code series published by the Australian Building Codes Board, as amended or substituted from time to time; nominated manager means a person who is named in a licence or a notice under section 26 as a nominated manager; owner – see section 3A ; owner builder means a person who holds an owner builder permit; owner builder permit means a permit issued under Part 3A ; practitioner means a person who is the holder of a licence, including a person who is the holder of licence by virtue of holding deemed registration, authorising him or her to carry out any prescribed work other than building services work; premises includes – (a) land and a structure, building, caravan, vehicle or vessel, whether temporary or not and whether under construction or not; and (b) a place, whether enclosed or built on or not and whether on, within, over or under land or water; and (c) a part of premises, including premises referred to in paragraph (a) or (b) ; prescribed work means any work that is – (a) usually carried out in the course of an occupation, trade or calling to which this Act applies; and (b) determined by the regulations to be prescribed work; and (c) not excluded from the application of this Act by the regulations; regulations means regulations made and in force under this Act; representation means an express or implied representation; standard means a standard issued by a standards authority; standards authority means Standards Australia International Limited, the British Standards Institution, the International Organization for Standardization, the American National Standards Institute, Standards New Zealand or any other similar authority approved by the Administrator; statutory authority means a body or authority, whether incorporated or not, which is established or constituted by or under an Act or under the Royal Prerogative, being a body or authority which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister or another statutory authority but does not include a Government department; supervision means supervision within the meaning of a code of practice. (2) A reference in this Act to an approved course of training in respect of any prescribed work includes a course of training undertaken for the purposes of a qualification or statement of attainment in accordance with the Australian Qualifications Framework within the meaning of the Training and Workforce Development Act 2013 . (3) Unless the contrary intention appears, an expression used in this Act that is defined in the Building Act 2016 has the same meaning in this Act as in section 4 of the Building Act 2016 . (4) A reference in this Act to the class of a building is a reference to that class as set out in the National Construction Code. 3A. Meaning of owner For the purposes of this Act, a person is an owner, in respect of any premises – (a) in the case of an owner as referred to in sections 22A and 29B , if the person is an owner within the meaning of section 4 of the Building Act 2016 ; or (b) in any other case, if the person – (i) is entitled to any interest in the premises; or (ii) has contracted to buy the premises; or (iii) is entitled to receive, or is in receipt of, the rents and profits of the premises, whether as beneficial owner, trustee, mortgagee in possession or otherwise; or (iv) has, or is entitled to have, the management or control of any premises. 4. Meaning of continuing professional development For the purposes of this Act, a practitioner, or building services provider, is taken to demonstrate continuing professional development if he or she has undertaken and can show commitment to – (a) development of skills in respect of the prescribed work which he or she proposes to carry out and any learning required for that purpose; and (b) maintenance of his or her existing skills. 5. Objects of Act The objects of this Act are to ensure that – (a) all work carried out in the course of certain occupations, trades or callings is carried out by appropriately qualified and licensed persons; and (b) all such work is carried out safely without injury or damage to any person, property or infrastructure; and (c) all persons carrying out any such work acquire, maintain, further develop and apply their skills properly. 6. Crown to be bound This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. 7. Application of Act to occupations, trades and callings (1) This Act applies to the occupation, trade or calling that is performance of electrical work as described in Part 1 of Schedule 2 . (1A) This Act applies to the occupation, trade or calling that is performance of gas-fitting work as described in Part 2 of Schedule 2 . (1B) This Act applies to the occupation, trade or calling that is performance of plumbing work as described in Part 3 of Schedule 2 . (1BA) This Act applies to the occupation, trade or calling that is performance of building services work as described in Part 4 of Schedule 2 . (1C) This Act applies to any occupation, trade or calling added to Schedule 2 by order under subsection (2) . (2) Where the Minister is satisfied that, in the course of any occupation, trade or calling, a person is likely to, or may, create a hazard, risk or danger to – (a) public health or safety; or (b) property or infrastructure – the Minister may, by order published in the Gazette and in such daily newspapers circulating generally in Tasmania as the Minister thinks fit, amend Schedule 2 by adding or varying an occupation, trade or calling. (3) An order under subsection (2) – (a) is to state the grounds on which it is made by reference to public health, safety, property or infrastructure; and (b) is to be published in a way that ensures, in the Minister's opinion, that the order will come to the attention of persons affected by it; and (c) may provide that only such provisions of this Act as are specified in the order are to apply to the relevant occupation, trade or calling; and (d) may provide that the provisions of any other Act that relates to the relevant occupation, trade or calling, or such provisions of that Act as are specified in the order, are to continue to have effect notwithstanding the provisions of this Act. (4) The Minister must cause a copy of the order to be laid before each House of Parliament within 14 sitting-days of that House and the order is subject to disallowance under section 47 of the Acts Interpretation Act 1931 as if it were a regulation. (5) The provisions of the Acts referred to in Schedule 3 continue to have effect notwithstanding the provisions of this Act. 8. Act not to affect laws relating to mutual recognition Nothing in this Act affects the application of any other law relating to the mutual recognition of qualifications to perform any prescribed work. 9. Application of other Acts (1) This Act is in addition to, and does not derogate from, any other Act – (a) relating to contractors, practitioners, building services providers and other persons engaged in any occupation, trade or calling to which this Act applies; or (b) prescribing any requirements with which any prescribed work must comply. (2) This section is subject to the provisions of any order made under section 7(3)(c) or (d) . PART 2 - Administration Division 1 - Administrator of Occupational Licensing 10. Administrator The Minister administering the State Service Act 2000 may appoint a State Service officer or State Service employee to be the Administrator of Occupational Licensing and that officer or employee may hold that office in conjunction with State Service employment. 11. General functions of Administrator The Administrator has the following functions: (a) to advise the Minister on legislation and any other matter relating to the administration of this Act; (b) to confer with and seek advice from State Service Agencies, approved authorities and any other persons, bodies or organisations engaged in any relevant industry and other interested groups or bodies on matters relating to the administration of this Act; (c) to confer with and seek advice from any national body established to deal with matters relating to occupational licensing and to represent Tasmania in respect of the administration of this Act; (d) to promote continuing professional development in respect of any occupation, trade or calling to which this Act applies; (e) to publish reports and disseminate information on matters relating to the administration of this Act; (f) to review the performance of licence holders and authorised officers; (g) to carry out any other function relating to the administration of this Act that the Minister determines. 12. Assistance to Administrator The Administrator may make arrangements with the Head of a State Service Agency for such State Service officers and State Service employees employed in that Agency as the Administrator considers necessary to be made available to the Administrator to enable the Administrator to perform his or her functions and exercise his or her powers under this Act and those officers and employees may, in conjunction with State Service employment, serve the Administrator in any capacity. 13. Power to obtain information (1) The Administrator may, by written notice given to a person who may, in the Administrator's opinion, be in possession of information, documents or materials relating to any occupation, trade or calling to which this Act applies or otherwise to the administration of this Act, require the person – (a) to provide written answers to specified questions within a specified period; or (b) to produce documents or other materials for examination at a specified time and place; or (c) to appear before an authorised officer at a specified time and place for examination on a specified matter; or (d) having appeared for examination as mentioned in paragraph (c) , to answer any question relating to the administration of this Act. (2) A person who – (a) without reasonable excuse fails to comply with a requirement under this section; or (b) in response to such a requirement, knowingly gives information that is false or misleading or deliberately refrains from giving material information; or (c) having been required to appear before an authorised officer for examination, fails to comply with any reasonable requirement of the authorised officer – is guilty of an offence. Penalty: In the case of – (a) a body corporate, a fine not exceeding 100 penalty units; or (b) an individual, a fine not exceeding 50 penalty units. Division 2 - Occupational Licensing Advisory Board 14. Occupational Licensing Advisory Board (1) The Minister may establish a board, to be known as the "Occupational Licensing Advisory Board". (2) The functions of the Board are to advise the Administrator on – (a) the performance of the Administrator's functions or the exercise of his or her powers under this Act; and (b) the administration of licences granted to contractors, practitioners and building services providers; and (c) the training and skills required of practitioners, building services providers, nominated managers and authorised officers; and (d) any other matter referred to the Board by the Administrator. (3) Schedule 4 has effect with respect to the constitution, membership and meetings of the Board. (4) With the approval of the Administrator, the Board may establish committees to advise it on the training and skills required of practitioners, building services providers, nominated managers and authorised officers and on any other matter on which the Administrator has sought its advice. (5) With the approval of the Administrator, the Board may engage additional persons to advise it on the performance of its functions under this Act. (6) The Minister may determine procedures to be followed by the Board and, to the extent that the Board's procedures are not so determined, the Board may determine its own procedures. Division 3 - Delegation 15. Delegation of Administrator's functions (1) The Administrator may delegate any of his or her functions under this Act, except this power of delegation. (2) A delegation may be made to – (a) an approved authority; or (b) a State Service officer or State Service employee; or (c) an officer or employee of an approved authority; or (d) any other person of an occupation or class prescribed by the regulations. Division 4 - Authorised officers 16. Appointment of authorised officers (1) The Administrator may appoint – (a) a State Service officer, State Service employee or any other person; or (b) a member of a class of police officers, State Service officers, State Service employees or employees of a company carrying out functions for the purposes of this Act – to be an authorised officer for the purposes of this Act on such terms and conditions as are specified in the instrument of appointment and, in the case of a State Service officer or State Service employee, he or she may hold that office in conjunction with State Service employment. (2) The Administrator is to issue an authorised officer appointed under subsection (1)(a) with – (a) an instrument of appointment; and (b) an identity card. (3) A person may not be appointed as an authorised officer under this section unless the Administrator is satisfied that he or she is qualified by reason of knowledge and experience to hold that office. (4) The powers and functions of an authorised officer under this Act must be exercised or performed in accordance with any limitations stated in the instrument of his or her appointment. Penalty: In the case of – (a) a body corporate, a fine not exceeding 150 penalty units; or (b) an individual, a fine not exceeding 75 penalty units. (5) Where an authorised officer appointed under subsection (1)(a) ceases to be appointed as such, he or she must within 10 days surrender his or her identity card to the Administrator. Penalty: Fine not exceeding 20 penalty units. 17. Entry to premises (1) An authorised officer may enter any premises – (a) in which, on which or for the purposes of which any prescribed work has been, is being or is intended to be carried out; or (b) for the purposes of inspecting any article or thing on which prescribed work has been, is being or is intended to be carried out; or (c) for the purposes of taking any action that is reasonably necessary or desirable for the purposes of this Act. (2) A power of entry conferred by this Act may be exercised – (a) with the consent of the occupier of the premises to be entered; or (b) with the authority of a warrant; or (c) in an emergency, where it is impracticable to obtain a warrant or the consent of the occupier. (3) On entering any premises in or on which an authorised officer appointed under section 16(1)(a) proposes to exercise his or her powers or perform his or her functions under this Act, the authorised officer, if so requested by – (a) the owner of the premises; or (b) the employer of any person engaged in carrying out any prescribed work in or at the premises – is to show his or her identity card to the owner or employer. (4) A failure by an authorised officer to show his or her identity card does not invalidate any subsequent exercise of his or her powers. 18. Warrant to enter premises (1) An authorised officer may apply to a justice for a warrant to enter the premises specified in the application. (2) The justice may issue the warrant if satisfied that a warrant is reasonably required for the purposes of this Act. (3) A warrant authorises the authorised officer – (a) to enter the premises specified in the warrant; and (b) to do anything reasonably required for the administration or enforcement of this Act. (4) A warrant is to specify the date on which, and the time at which, the warrant ceases to have effect. (5) An application for a warrant may be made by telephone, facsimile or other prescribed means if the authorised officer considers that the urgency of the situation requires it. (6) If the justice decides to issue a warrant on an application under subsection (5) , the justice is to – (a) complete and sign the warrant; and (b) inform the applicant of – (i) the terms of the warrant; and (ii) the date and time of the issue of the warrant; and (iii) the date and time when the warrant is to cease to have effect; and (c) record on the warrant the reasons for issuing it. (7) The authorised officer must – (a) complete a warrant form in the same terms as the warrant signed by the justice; and (b) write on the form – (i) the name of the justice; and (ii) the date and time of the issue of the warrant; and (c) send to the justice the completed form not later than the day after the warrant is executed or ceases to have effect. (8) On receipt of the warrant form, the justice is to attach it to the warrant signed by the justice. (9) A warrant form completed under subsection (7) by an authorised officer has the same force as the original of the warrant signed by the justice. 19. Powers of authorised officers If an authorised officer reasonably considers that an offence against this Act has been, is being or is likely to be committed or a code of practice has been, is being or is likely to be contravened in any premises, the authorised officer may enter those premises and do one or more of the following: (a) require the owner or occupier of those premises or any employee of the owner or occupier to produce any records relating to any business in which, or for the purposes of which, any prescribed work is being carried on; (b) search for, inspect, take extracts from and make copies of those records; (c) require any person who appears to be able to do so to answer any question relating to any prescribed work, the duties of contractors or the duties of practitioners, or building services providers, under this Act. 20. Offences relating to authorised officers A person must not – (a) obstruct, wilfully delay, threaten or intimidate an authorised officer or a person assisting an authorised officer in the performance of his or her functions under this Act; or (b) without lawful excuse, refuse or fail to comply with a requirement made, or to answer a question asked, by an authorised officer under this Act; or (c) provide an authorised officer with information requested under this Act knowing that it is false or misleading in a material particular; or (d) directly or indirectly prevent any person from appearing before, or being questioned by, an authorised officer. Penalty: In the case of – (a) a body corporate, a fine not exceeding 400 penalty units; or (b) an individual, a fine not exceeding 200 penalty units. PART 3 - Duties of Persons Relating to Prescribed Work 21. Obligation to hold contractor's licence A person must not carry on business as a contractor unless – (a) the person holds a contractor's licence of the occupation and class appropriate to the prescribed work, other than building services work, carried out in the course of the business; or (b) the person is the holder of a contractor's licence by virtue of holding deemed registration. Penalty: In the case of – (a) a body corporate, a fine not exceeding 400 penalty units; or (b) an individual, a fine not exceeding 200 penalty units. 22. Obligation to hold practitioner's licence (1) A person must not carry out any prescribed work, other than building services work, unless – (a) the person holds a practitioner's licence of the relevant occupation and class; or (b) the person is undergoing an approved course of training and the prescribed work is supervised by a practitioner of the relevant occupation and class; or (ba) the person is the holder of a practitioner's licence of the relevant occupation and class by virtue of holding deemed registration; or (c) the person is permitted to do so under section 36(4) and (5) . Penalty: In the case of – (a) a body corporate, a fine not exceeding 400 penalty units; or (b) an individual, a fine not exceeding 200 penalty units. (2) A person must not supervise the performance of prescribed work unless he or she is the holder of a practitioner's licence – (a) issued by the Administrator of the relevant occupation and class; or (b) of the relevant occupation and class by virtue of holding deemed registration. Penalty: In the case of – (a) a body corporate, a fine not exceeding 400 penalty units; or (b) an individual, a fine not exceeding 200 penalty units. (3) A practitioner must ensure that he or she acts only in the area of his or her competence. Penalty: In the case of – (a) a body corporate, a fine not exceeding 400 penalty units; or (b) an individual, a fine not exceeding 200 penalty units. 22A. Obligation to hold building services licence (1) A person must not manage, carry out, or enter into a contract to manage or carry out, any building services work unless the person holds – (a) a building services licence of the occupation and class relevant to the building services work; or (b) a building services licence of the relevant occupation and class by virtue of holding deemed registration. Penalty: In the case of – (a) a body corporate, a fine not exceeding 400 penalty units; or (b) an individual, a fine not exceeding 200 penalty units. (2) Subsection (1) does not apply to – (a) a person managing and carrying out building services work if – (i) the person is an owner builder; and (ii) the building services work is carried out under the authority of the owner builder permit held by the person; and (iii) each owner, that has attained the age of 18 years, of the premises where the building services work is, or is to be, carried out is an owner builder in relation to the premises; or (b) a person managing or carrying out building services work, or entering into a contract to manage or carry out building services work, if the person is employed or engaged to manage or carry out that work by – (i) a building services provider who holds a building services licence of the occupation and class relevant to the building services work; or (ii) a licensed entity that holds a building services licence of the occupation and class relevant to the building services work; or (iii) an owner builder who holds an owner builder permit that authorises the building services work to be so managed or carried out; or (ba) an organisation, whether incorporated or unincorporated, if each person managing or carrying out building services work, or entering into a contract to manage or carry out building services work, on behalf of that organisation – (i) holds a building services licence of the occupation and class relevant to the building services work being managed or carried out by that person; or (ii) is not required, under this subsection, to hold such a licence while the person manages or carries out the building services work; or (bb) a person who is carrying out building services work, if the person – (i) is employed or engaged to carry out that work by a person (the relevant employer); and (ii) is carrying out that work in accordance with a request of another person and the other person – (A) is also employed or engaged by the relevant employer; and (B) holds a building services licence of the occupation and class relevant to that work; or (c) a licensed plumb