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1
Queensland Building Services Authority and Other
Legislation Amendment Bill
Queensland Building Services Authority
and Other Legislation Amendment Bill
2007
Explanatory Notes
Short Title
Queensland Building Services Authority and Other Legislation
Amendment Bill 2007
General Outline
Objective of the Legislation
The objective of the Queensland Building Services Authority and Other
Legislation Amendment Bill 2007 (the Bill) is to amend the Queensland
Building Services Authority Act 1991 (QBSA Act), the Domestic Building
Contracts Act 2000 (DBC Act) and the Professional Engineers Act 2002
consistent with the prescribed purposes specified in each of the Acts.
The QBSA Act establishes a licensing regime for building contractors and
supervisors and a permit system for owner-builders. The QBSA Act also
establishes a Statutory Insurance Scheme to assist consumers who have
suffered loss due to defective or incomplete residential construction work.
These functions are administered by the Queensland Building Services
Authority (BSA).
The DBC Act regulates domestic building contracts for the carrying out or
management of domestic building work.
The Professional Engineers Act 2002 provides for registration of engineers
by the Board of Professional Engineers of Queensland.
Reasons for the Bill
Licensing of fire protection work
The `Building Fire Safety in Queensland Budget Accommodation Report
2000' (the Childers Report), which was released following the Palace
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Queensland Building Services Authority and Other
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Backpackers Hostel fire in Childers, made a range of recommendations to
improve fire industry standards. One of these recommendations was for the
introduction of fire protection contractor licensing, which was
implemented on 1 January 2001 pursuant to amendments to the QBSA Act.
An outstanding recommendation of the Childers Report is the
establishment of an occupational licensing regime for the fire protection
industry. The Bill amends the QBSA Act to provide the statutory
framework to implement this recommendation.
The benefits to the community of an occupational licensing system for fire
protection workers include:
· improved compliance with building fire safety regulations leading to
reduced costs for owners, occupiers, government, emergency services
and local government;
· better training and improved worker safety for fire protection workers;
· greater community confidence that work is performed by
appropriately skilled workers to the prescribed standards; and
· reduced risk to fire fighters responding to fire emergencies.
Supervision of building work
Under the QBSA Act, building work carried out by a licensed contractor
must be carried out under the personal supervision of:
· the licensee or an appropriately licensed employee, if the licensed
contractor is an individual; or
· an appropriately licensed officer or employee of the company, if the
licensee is a company.
Contractors have a statutory obligation to ensure building work is
adequately supervised. In the case of a company licensee, the licensed
nominee for the company also has this obligation.
The Queensland Building Services Board, in consultation with wider
industry, has identified that there is a substantive shortage of licensed
supervisors to carry out on-site supervision of building work. Research
conducted by the BSA indicates that lack of appropriate on-site supervision
is significantly impacting on the quality of building work in the State.
The Bill implements initiatives to better address supervision in the QBSA
Act. These include widening the pool of licensees who may personally
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Queensland Building Services Authority and Other
Legislation Amendment Bill
supervise building work and providing more guidance as to the factors
relevant to determining whether building work is adequately supervised.
Offences and penalties
A review of the maximum penalties in the QBSA Act and DBC Act in
2005-06 indicates that some of the maximum penalties in the Acts are
disproportionately low when compared to other comparable legislation. To
ensure sufficient deterrence for non-compliance with the QBSA Act and
the DBC Act, it is proposed that maximum penalties, particularly for the
more serious offences under the Acts (e.g. unlawful carrying out of
building work) be increased.
It has also been identified that a number of new offences should be inserted
in the QBSA Act to address building contractors who:
· provide false documents or information to the BSA;
· fail to have an appropriately licensed nominee;
· obstruct a BSA inspector;
· advertise to carry out building work without a licence; or
· fail to keep documents relevant to obligations under the QBSA Act or
DBC Act.
Demerit points are imposed on licensees who commit specified offences
(demerit offences) against various sections of the QBSA Act and DBC Act.
Demerit points are removed three years after the date they take effect. A
licensee who accumulates 30 demerit points over a three-year period may
be banned for three years. If they return to the industry, and within 10 years
of the first ban, accumulate 30 demerit points over three years, they face a
life-time ban.
To assist improvement of key building work and contractual standards in
the industry, it is proposed that demerit offences should be expanded to
include offences relating to:
· failure to rectify defective building work under a BSA direction;
· failure to pay a statutory insurance premium;
· failure of a company to have a nominee;
· failure to have a contract in writing or comply with contractual
content requirements under the DBC Act.
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Queensland Building Services Authority and Other
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Audit powers - insurance
Under section 50A of the QBSA Act, the Minister may approve an audit
program permitting the BSA to audit licensees to find out if they continue
to satisfy the Board's `Financial Requirements for Licensing Policy' and if
they have been complying with contractual requirements under the QBSA
Act and the DBC Act. Further, section 50C of the QBSA Act allows the
BSA to require licensees to give copies of, or access to, financial records or
documents if the BSA is satisfied there are reasonable grounds for concern
that the licensee does not satisfy the `Financial Requirements for Licensing
Policy', or is not complying with Part 4A of the QBSA Act or the DBC
Act.
The current matters that may be subject to audit in sections 50A and 50C of
the QBSA Act do not include compliance with the requirements of the
QBSA Act for contractors to pay insurance where they carry out residential
construction work. Given there is a consistent pattern of non-compliance
by some parts of the industry with this obligation, an expansion of the audit
powers in the QBSA Act is considered warranted.
National Competition Policy Review of QBSA Act
A review of the QBSA Act under National Competition Policy was
completed in April 2003. However, not all matters were able to be dealt
with at that time and a further review dealing with these outstanding
matters was conducted in 2004-05 by an Interdepartmental Steering
Committee comprising representatives from the Department of the Premier
and Cabinet, Queensland Treasury, the Department of Public Works, the
Department of Housing and the BSA. In 2005, the Steering Committee
appointed an independent consultant to assist with the review.
Following its review of issues under the QBSA Act, the consultant, with
endorsement of the steering committee, recommended the implementation
of a differential in the BSA's pricing structure to provide an incentive for
licensees to perform adequate work, or bear the cost of using the dispute
and insurance schemes.
The options for implementing a pricing differential were through either the
insurance or licensing functions of the BSA. In view of the difficulties with
applying a differential to the insurance function, the preferred option is for
a differential to be applied to the licensing function of the BSA.
Developers
A number of instances have occurred in recent years where property
developers have intentionally entered into an agreement with a building
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Queensland Building Services Authority and Other
Legislation Amendment Bill
contractor to carry out defective work to the substantial detriment of the
consumer. It is considered that in these circumstances both the building
contractor and developer should be held accountable for rectifying the
defective work. The Bill amends the QBSA Act to allow the BSA to issue a
direction to rectify building work to a developer in relevant circumstances
and also record the direction on the public register maintained by the BSA.
Other amendments in the Bill also ensure that developers and speculative
builders cannot claim against the Statutory Insurance Scheme. The purpose
of the Statutory Insurance Scheme is to protect home owners and like
consumers, not commercial building enterprises.
Review of QBSA Act and DBC Act
Ongoing review of the QBSA Act and the DBC Act over the last three
years indicates that various amendments are required to both Acts to ensure
that they continue to remain relevant to the industry, improve consumer
protection and promote quality building work and contractual practices. In
addition, amendments are also necessary to better articulate and provide
guidance to building contractors, nominees, construction managers,
owner-builders and consumers as to their rights and responsibilities.
This review also identified that the owner-builder permit provisions in the
QBSA Act require amendment to minimise the risk of permit holders
carrying out defective building work, clarify ambiguities in the existing
provisions and generally improve the administrative framework for the
permit system.
Registration of Professional Engineers
Following Crown Law advice, administrative amendments are required to
the Professional Engineers Act 2002 to correct an administrative oversight
with respect to professional engineer registrations made under transitional
provisions which apply the provisions of the repealed Professional
Engineers Act 1988.
Achievement Of Policy Objectives
The objectives of the Bill with respect to the QBSA Act are achieved
primarily by making amendments to the Act as follows:
· creating a fire protection occupational licensing system to be
administered by the BSA;
· introducing a two-tier licensing system for supervisors and widening
the pool of persons who may personally supervise building work to
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Queensland Building Services Authority and Other
Legislation Amendment Bill
include licensed contractors other than officers or employees of the
contractor;
· increasing the maximum penalties for offences in line with similar
offences under Queensland legislation;
· creating a number of new offences to address such matters as
provision of misleading or false information to the BSA, failing to
have an appropriately licensed nominee, failing to keep documents
and obstructing an inspector;
· expanding the range of demerit offences;
· expanding the audit powers of the BSA to include compliance with
responsibilities of contractors with respect to payment of insurance;
· implementing a licensing fee differential to provide an incentive for
licensees to perform adequate work;
· allowing the issue of a direction to rectify building work in
appropriate circumstances to a developer and record the direction on
the public register maintained by the BSA;
· inserting provisions in the QBSA Act specifically dealing with the
responsibilities of construction managers to be licensed, to supervise,
to pay insurance and to rectify defective building work;
· expanding the matters listed on the public register for licensees and
creating an owner-builder permit register;
· enhancing owner-builder permit requirements to ensure building
work carried out under a permit is of an appropriate standard;
· allowing notice by way of gazettal for insurance premiums; and
· imposing restrictions on the issue and renewal of licences and permits
where the applicant or licensee fails to take steps to discharge
infringement notices for offences under the QBSA Act or the DBC
Act.
A small number of amendments are also proposed to the DBC Act. These
amendments increase the maximum penalties for a number of offences,
expand the range of demerit offences, insert an offence provision for failing
to keep prescribed documents and clarify the types of contracts intended to
be covered by the Act.
The Bill also amends the Professional Engineers Act 2002 to correct an
administrative oversight with respect to professional engineer registrations
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made under transitional provisions which apply the provisions of the
repealed Professional Engineers Act 1988.
Assessment Of Administrative Cost To Government
The amendments are not expected to have any significant administrative
cost implications for Government other than the BSA.
The BSA is a statutory authority funded by industry, primarily through
licence fees. The BSA has indicated that aside from the implementation
and administration of an occupational licensing system for fire
practitioners, all costs associated with the amendments can be absorbed
without an increase in existing licensing fees. Costs associated with the
occupational licensing of fire protection workers will be recovered through
licensing fees for the new licence class set by regulation.
In accordance with the Statutory Instruments Act 1992, fees will be set
following release of a regulatory impact statement.
Consistency With Fundamental Legislative Principles
It is not considered that the Bill raises any substantive fundamental
legislative principles issues. While the amendment to the Professional
Engineers Act 2002 is retrospective in effect, it does not adversely affect
rights or liberties and does not impose obligations retrospectively.
Extent Of Consultation
All Government departments have been consulted in the preparation of the
Bill.
Wide industry consultation has been undertaken with respect to the policy
proposals contained in the Bill. This consultation has occurred through
BSA Industry Planning Conferences, the Queensland Building Services
Board and its various policy committees comprising industry and consumer
representatives. Extensive individual consultation with major industry
contractor and trade associations has also been undertaken.
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Queensland Building Services Authority and Other
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Notes On Provisions
Part 1 Preliminary
Clause 1 states the short title.
Clause 2 states the commencement date will be fixed by proclamation,
other than Part 4 (Amendment of Professional Engineers Act 2002).
Part 2 Amendment of Queensland
Building Services Authority Act
1991
Clause 3 states the Act to be amended by Part 2 is the QBSA Act.
Clause 4 omits section 4AA (Note in text) of the QBSA Act. This
amendment is of a technical drafting nature and does not represent a policy
change.
Clause 5 amends section 30 (Classes of licence) of the QBSA Act to
remove all references to a supervisor's licence. In other amendments made
by the Bill, supervisors' licences are specifically dealt with under separate
provisions.
Clause 6 inserts section 30A (Nominee supervisor's licence) and section
30B (Site Supervisor's licence). The effect of these sections is that
supervisors' licences may now be issued in two categories namely, a
nominee supervisor's licence and a site supervisor's licence. The new
sections 30A and 30B allow for a nominee supervisor's licence and a site
supervisor's licence to be issued and specify what these licences authorise
the holder to do.
Clause 6 inserts section 30C (Fire protection occupational licence) into the
QBSA Act. The new section allows for a fire protection occupational
licence to be issued and specifies what the licence authorises the holder to
do.
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Queensland Building Services Authority and Other
Legislation Amendment Bill
Clause 6 also inserts provisions to allow for nominee supervisors' licences,
site supervisors' licences and fire protection occupational licences to be
divided into classes by regulation.
Clause 7 amends section 31 (Entitlement to contractor's licence) of the
QBSA Act. The amendment inserts additional criteria of which the BSA
must be satisfied before issuing a contractor's licence. The only substantive
policy change, however, are those criteria which require the BSA to be
satisfied that the applicant may lawfully work in Queensland and does not
have an unpaid judgment debt for an amount that may be recovered under
section 71 of the QBSA Act. The other additional criteria inserted by
Clause 7 were already relevant criteria but were located in other provisions
of the QBSA Act.
Clause 7 redrafts section 31(2)(a) of the QBSA Act. However, the
amendment is not intended to be a policy change and merely updates the
wording of the existing section to accommodate modern drafting practices.
Clause 7 inserts an additional matter in section 31(3) of which the BSA
may have regard in deciding whether a person is fit and proper to hold a
contractor's licence or exercise control or influence over a company that
holds a contractor's licence. The additional matter concerns the
circumstance where the person is an enforcement debtor under an
enforcement order for an infringement notice offence for the QBSA Act or
the DBC Act. The amendment allows the BSA to have regard to whether
the person has taken steps in accordance with the State Penalties
Enforcement Act 1999 to discharge the amount stated in the order.
Clause 8 omits section 32 (Entitlement to supervisor's licence) of the
QBSA Act and inserts new sections 32 (Entitlement to a nominee
supervisor's licence), 32AA (Entitlement to a site supervisor's licence) and
32AB (Entitlement to a fire protection occupational licence). The new
sections provide the criteria for which the BSA must be satisfied before an
individual applicant is entitled to each of the respective licences.
Clause 9 amends section 33 (Application for licence) of the QBSA Act to
provide that an application for a licence must be accompanied by two
recent passport-size photographs of the applicant.
Clause 10 amends section 34 (Grant of a licence) to insert additional
matters that must be included on a licence card. These include a recent
photograph of the licensee (if the licensee is an individual) and a statement
of when the licence is due for renewal.
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Queensland Building Services Authority and Other
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Clause 11 renames Part 3, Division 5 to make it more descriptive of the
contents of the Division.
Clause 11 omits the existing section 37 (Annual licence fee) of the QBSA
Act and inserts a new section 37 (When licences to be renewed). The new
section is more precisely drafted than the existing section and has been
expanded in its ambit to address the renewal of site supervisors' licences
and fire protection occupational licences.
Clause 11 inserts a new section 37A (Authority to advise licensee before
licence due for renewal). Under the new section the BSA must give a
licensee a notice 28 days before the due date of renewal and must advise of
the renewal date and other prescribed matters.
Clause 11 inserts a new section 37B (Applications for renewal of licence)
which deals with an application for a renewal of a licence and its contents.
The new section also allows the BSA to give a licensee a written notice to
provide further information or evidence to the BSA which it requires to
decide whether the applicant continues to be entitled to hold a licence
under the QBSA Act.
Clause 11 inserts a new section 37C (Renewal fee increased if directions
given) into the QBSA Act. Under the section a licence renewal fee is to be
increased by a one-off amount equivalent to the value of one penalty unit
for each direction given to the licensee under section 72 of the QBSA Act.
The maximum amount by which a renewal fee may be increased is an
amount equivalent to 10 penalty units. The provision includes safeguards to
ensure the increased renewal fee is not applied if the direction of the BSA
is the subject of a successful review or if a proceeding for a review has not
been finalised.
Clause 12 amends section 38(3) of the QBSA Act to provide that the term
"licence fee" as used in the section includes any amount by which the
renewal fee is increased under the new section 37C (Clause 11 refers).
Clause 13 omits Part 3, Division 6 (The register). Under the Bill provisions
dealing with the register of licensees have been moved to Part 8 of the
QBSA Act.
Clause 14 inserts a number of notes in section 42 (Unlawful carrying out of
building work) to cross-reference other sections in the QBSA Act.
Clause 14 inserts two new sub-sections into section 42 namely section
42(8A) and section 42(8B). The intent of section 42(8A) is to ensure that a
consumer who engages one or more licensed contractors to carry out
building work does not require a contractor's licence if the consumer does
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Queensland Building Services Authority and Other
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not provide building work services for the work. The intent of section
42(8B) is to ensure that a person who lawfully carries out building work
under a licence under the QBSA Act other than a contractor's licence, does
not also require a contractor's licence to a carry out the work.
Clause 14 increases the maximum penalty for contravening section 42.
Clause 14 inserts a new definition of licensed trade contractor in section 42.
The new definition better aligns the meaning of licensed trade contractor
with the classes of licence provided under the Queensland Building
Services Authority Regulation 2003. Under the definition a completed
building inspection cannot be carried out by an unlicensed subcontractor
under section 42(5A).
Clause 15 inserts 3 new offence provisions, namely section 42B (Carrying
out building work without a nominee), section 42C (Unlawful carrying out
of fire protection work) and 42D (Licensed contractor must not engage or
direct unauthorised person for fire protection work).
The new section 42B makes it an offence for a company licensee to carry
out or undertake to carry out building work unless the licensee has a
nominee who holds a contractor's licence or nominee supervisor's licence
of the relevant class. However, a licensee does not commit an offence
against the section if the period the licensee has not had a nominee is less
than 28 days.
The new section 42C makes it an offence for an individual to personally
carry out or personally supervise fire protection work unless the individual
holds a fire protection occupational licence of the relevant class for the
work or otherwise holds a licence, registration or authorisation under the
QBSA Act or another Act to carry out or supervise the work. The provision
excludes from its ambit persons who carry out fire protection work as
apprentices, trainees or students. In addition, there is provision for a
regulation to be made to allow prescribed types of fire protection work to
be lawfully carried out by unlicensed persons if they hold prescribed
technical qualifications and carry out the work for an appropriately
licensed contractor.
The new section 42D makes it an offence for a licensed contractor to
engage or direct an employee to carry out fire protection work unless the
employee is authorised to carry out the work under the QBSA Act or
another Act.
Clause 16 omits and replaces section 43 (Supervision of building work) of
the QBSA Act with four new sections.
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Queensland Building Services Authority and Other
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The new section 43 (Licensed contractor must ensure building work is
personally supervised) reflects the existing section 43(1) of the QBSA Act
to the extent that there continues to be an obligation on contractors and
nominees to ensure that work carried out under a contractor's licence is
personally supervised by an appropriately licensed person. However, the
new section 43 widens the scope of persons who may lawfully supervise
building work carried out under a contractor's licence. Specifically, the new
section allows employees or officers of a contractor to personally supervise
building work for a contractor if they hold a relevant nominee supervisor's
licence, site supervisor's licence, fire protection occupational licence, or an
occupational licence under another Act that authorises supervision of the
work. Holders of a relevant contractor's licence may also personally
supervise building work for a contractor, regardless of whether they are an
employee or officer of the contractor.
Clause 16 inserts a new section 43A (Licensed contractor must ensure
building work is adequately supervised). This section redrafts the existing
requirement in section 43 for contractors and nominees to ensure that
building work carried out under a contractor's licence is adequately
supervised. The new section is drafted in plain English and provides greater
guidance as to the factors relevant to determining what constitutes adequate
supervision.
Clause 16 also inserts new sections 43B (Construction manager must
ensure building work is personally supervised) and 43C (Construction
manager must ensure building work is adequately supervised). These
sections specify the supervision obligations of construction managers who
provide building work services under a construction management contract.
These obligations are similar to those imposed on building contractors who
carry out building work under a contract other than a construction
management contract. The supervision-related obligations of construction
managers have been separately dealt with to provide greater clarity in the
legislation with respect to building work carried out under this type of
contractual arrangement.
Clause 16 also increases the maximum penalties for supervision-related
offences.
Clauses 17 and 18 replace section 44 (Permits for owner-builders) of the
QBSA Act and provide for a more comprehensive owner-builder permit
system than is currently contained in the QBSA Act.
Clause 17 inserts section 43D (Definitions for div 8) which provides
definitions for Division 8 of the QBSA Act.
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Clause 17 inserts section 43E which specifies when an owner-builder
permit is required.
Clause 18 omits section 44 of the QBSA Act. Clause 18 further inserts
sections which set out the administrative provisions relevant to applications
for owner-builder permits, the consideration of applications, the criteria for
granting an owner-builder permit, the form of a permit, commencement of
a permit, surrender of a permit and the replacement of a lost, stolen,
destroyed or missing permit. The relevant sections are 44, 44A, 44B, 44C,
44F, 44J and 45.
Clause 18 also provides for permits to be issued subject to specified
statutorily imposed conditions, as well as other reasonable conditions the
BSA considers appropriate and stated in the permit (see section 44E).
Further, Clause 18 inserts new sections 44G and 44H which specify the
circumstances when a permit may be suspended or cancelled by the BSA
and the procedures for cancellation or suspension of a permit. The term of a
permit is prescribed as six years from its issue or an earlier date stated in
the permit (section 44D).
Clause 19 makes minor administrative drafting amendments to section 46
(Notification on certificate of title).
Clause 20 provides an additional circumstance for suspending or cancelling
a licence under section 48 of the QBSA Act.
Clause 20 also expands section 48(j) of the Act to take into account fit and
proper requirements associated with a nominee supervisor's licence, a site
supervisor's licence and a fire protection occupational licence.
Clause 21 omits an outdated reference in the heading of section 49B.
Clause 22 amends section 50A(1) (Approved audit program) to allow an
approved audit program for the purposes of finding out if licensees have
been complying with Part 5 (The statutory insurance scheme) of the QBSA
Act.
Clause 23 amends the notice provisions in section 50C (Supply of financial
records or other documents under approved audit program or for other
reason) to include references to Part 5 of the QBSA Act.
Clause 24 inserts a new section 50D (Person must not pretend to be a
licensee) which makes it an offence for a person to pretend to be a licensee.
Clause 24 increases the maximum penalties for a breach of section 51
(Improper use of licence card, certificate, number or PIN). Clause 24 also
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redrafts section 51 to widen its scope to include all licensees under the
QBSA Act. Currently, the section is restricted to licensed contractors.
Clause 25 amends section 51A (Other offences relating to unlawful
carrying out of building work) to increase the maximum penalty.
Clause 25 also omits section 51A(3). The insertion of a new definition in
Schedule 2 (Definitions) of the QBSA Act in relation to what is meant by
the term `carry out building work' (see Clause 82 of the Bill) removes the
need for this section.
Clause 26 omits section 51B(5). The insertion of a new definition in
Schedule 2 (Definitions) of the QBSA Act in relation to what is meant by
the term `carry out building work' (see Clause 82 of the Bill) removes the
need for this section.
Clause 27 expands the ambit of section 53B (False or misleading
documents about financial requirements) to include the provision of false
or misleading information other than in document form.
Clause 28 inserts a new section 53C (Advertising by unlicensed person)
which makes it an offence for a person who does not hold a contractor's
licence to advertise to carry out building work unless the person states in
the advertisement the value of the work that the person is entitled to carry
out without a licence. Clause 28 also makes provision for a regulation to
prescribe the way the advertisement is presented and the words to be
included in the advertisement.
Clause 29 increases the maximum penalty for the breach of a licensing
condition under section 56(1)(d) (Partnerships).
Clause 30 inserts a new section 56A (Authority may request photographs
for licence) which allows the BSA to request a licensee who is an
individual to give the BSA two passport-size photographs of the applicant
within 28 days of receiving the request. The provision requires the
photographs must be recent, certified in a way prescribed by regulation and
suitable for inclusion in the licensee's licence.
Clause 31 amends section 56AB (Operation of pt 3A) to exclude a site
supervisor's licence and a fire protection occupational licence from the
application of Part 3A (Excluded and permitted individuals and excluded
companies).
Clause 32 inserts section 56AD(8A) which provides a non-exhaustive list
of the circumstances which the BSA must have regard for the purposes of
section 56(8) of the QBSA Act. Clause 32 also provides for permitted
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Queensland Building Services Authority and Other
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individual applications under the section to be in a form approved by the
Queensland Building Services Board.
Clause 33 amends section 57 (Operation of pt 3B) to exclude a site
supervisor's licence and a fire protection occupational licence from the
application of Part 3B (Permanently excluded individuals).
Clause 34 amends section 62 (Operation of pt 3C) to exclude a site
supervisor's licence and a fire protection occupational licence from the
application of Part 3C (Convicted company officers).
Clause 35 amends a definition in section 67AQ (Definitions for pt 3E).
Clause 36 amends section 67AR (Meaning of demerit offence) to expand
the meaning of demerit offence to include offences against or
contraventions of sections 42B, 68(1), 72(10) of the QBSA Act and
sections 26 and 27(2)(f) of the DBC Act.
Clause 37 amends section 67AV (Operation of pt 3E) to exclude a site
supervisor's licence and a fire protection occupational licence from the
application of Part 3E (Disqualified individuals).
Clause 38 amends section 67AX (When demerit points allocated for
demerit offences) to align the section with amendments made by Clause 36.
Clause 39 amends the definition of a construction management trade
contract in section 67B (Meaning of construction management trade
contract) to align it with definitions inserted by the Bill of construction
manager and construction management contract in Schedule 2
(Dictionary). The amendment is not intended to substantially change the
definition of a construction management trade contract other than to be
more precise in excluding a contract with a construction manager from its
ambit.
Clause 40 increases the maximum penalties specified in section 67G
(Building contracts to be in writing).
Clause 41 increases the maximum penalties specified in section 67I
(Directions given under building contracts).
Clause 42 increases the maximum penalty in section 67V (Offence of not
warning that contract is construction management trade contract).
Clause 43 inserts section 67X (Statutory insurance scheme may be called
Queensland Home Warranty Scheme) which allows the Statutory Insurance
Scheme to operate under the name Queensland Home Warranty Scheme or
another name prescribed by regulation.
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Clause 43 also inserts section 67Y (Protection of expressions associated
with statutory insurance scheme) which makes it an offence in the
circumstances specified in the section for a person to use a declared
expression, a variation of a declared expression, or use any word similar in
sight or sound to a declared expression associated with the Statutory
Insurance Scheme.
Clause 44 amends the heading of section 68 of the QBSA Act to make it
more descriptive of the provision.
Clause 44 amends section 68 to specify who must pay the insurance
premium set under the QBSA Act for residential construction work and
when the premium must be paid. Unlike the existing provision the
amendments specifically recognise the obligations of a licensed
construction manager to pay the relevant insurance premium. The
maximum penalty for failing to pay the appropriate insurance premium has
also been increased.
Clause 45 inserts section 68A (Multiple contracts for the same residential
construction work). The section is intended to prevent contractors from
splitting contracts to perform residential construction work so as to avoid
paying insurance.
Clause 45 inserts section 68B (When insurance premium is payable by
licensed contractor) which specifies when a licensed contractor (other than
a construction manager) who carries out residential construction work must
pay an insurance premium for the work.
Clause 45 inserts section 68C (When insurance premium is payable by
construction manager) which specifies when a construction manager must
pay an insurance premium.
Clause 45 inserts clause 68D (Setting of insurance premiums for residential
construction work). The new section provides that the premium for
residential construction work, or the way it is to be calculated, must be
stated in a notice published in the Government Gazette. Section 68D
further specifies the factors that the BSA must have regard to and comply
with before stating the premium or the way it is to be calculated. Section
68D also places an obligation on the BSA to review premiums payable at
least once every 12 months and states how the premium payable is to be
determined for a construction manager.
Clause 46 omits and replaces section 69(2). The new section provides that a
policy of insurance comes into existence if the work involves speculative
residential construction work carried out by an appropriately licensed
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contractor. In all other respects the new provision is intended to reflect the
content of the omitted section 69(2), subject to technical amendments made
for drafting reasons.
Clause 47 inserts section 69A (Commencement of insurance cover). The
new section specifies when a policy of insurance comes into force.
Clause 48 amends section 70 (Insurance claims) to the effect that, in a
claim for indemnity under the Statutory Insurance Scheme, if regulations
do not state the way a notice of claim is to be given, a person who has
applied to the BSA under section 71A is taken to have given notice under
section 70.
Clause 49 inserts a new section 70A (Persons not entitled to indemnity
under insurance scheme) into the QBSA Act. The section specifies persons
who are not entitled to indemnity under the Statutory Insurance Scheme.
Clause 50 inserts a new section 71AA (Cancellation of policy of insurance)
which specifies when a policy of insurance may be cancelled by the BSA
and the premium refunded.
Clause 51 amends section 72 (Power to require rectification of building
work) to expressly state the circumstances when a construction manager, a
developer or a nominee is taken to have carried out building work for
section 72(1).
Clause 51 also inserts section 72(5AA) to the effect that a direction to
rectify may be given to more than one person for the same building work.
The section does not represent a policy change and is merely included to
provide greater clarity in drafting.
Clause 51 increases the penalty for the offence under section 72(10).
Clause 52 removes an outdated reference in the heading of section 75 and
expands the definition of tribunal work to include fire protection work.
Clauses 53 to 62 amend the headings of sections 76-85 to remove outdated
references to the repealed Queensland Building Tribunal Act 2000.
Clause 63 amends section 86(1) to provide for a review by the Commercial
and Consumer Tribunal of a decision by the BSA to refuse an application
for renewal of a licence and a decision to suspend or cancel an owner-
builder permit.
Clause 63 also amends section 86(2) to place beyond doubt that the section
prescribes when the Tribunal must not review a decision. This amendment
is of a clarifying nature only and does not represent a policy change.
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Clause 63 amends section 86(2)(b)(ii) by inserting a new sub-paragraph
(C) which has the effect of extending the ambit of the section to include the
circumstance of where the BSA has started a prosecution or served an
infringement notice for an offence under section 72(10) of the QBSA Act.
Clauses 64 - 68 amend the headings of sections 87-91 of the QBSA Act to
remove outdated references to the repealed Queensland Building Tribunal
Act 2000.
Clause 69 amends section 92(b)(iii) of the QBSA Act to remove the
outdated reference to a nominated supervisor and replace it with the word
"nominee", correct a typographical error in subsection 92(b)(iii) and
remove an outdated reference in the heading of the section.
Clauses 70 - 74 amend the headings of sections 93, 94, 95, 96 and 97 to
remove outdated references to the repealed Queensland Building Tribunal
Act 2000.
Clause 75 inserts a new Part 8 (Registers) into the QBSA Act. Prior to the
amendments made by the Bill, provisions dealing with the licensee register
were dealt with in Part 3, Division 6 (The register).
Clause 75 inserts a new section 98 (Definitions for pt 8) which specifies the
location of key definitions used in Part 8.
Clause 75 inserts a new section 99 (Licensee register) which provides that a
register of licensees must be kept by the BSA. Section 99 also specifies the
information that must be kept on the licensee register.
Clause 75 inserts a new section 100 (When information may be included in
the licensee register) which provides circumstances when information may
be included on the licensee register.
Clause 75 inserts a new section 101 (Licensees must advise change of
circumstances) which imposes an obligation on a licensee to advise the
BSA of changes of particulars relevant to the licensee register.
Clause 75 inserts a new section 102 (When notes must be removed from the
licensee register). This section specifies when a note or other details on the
licensee register must be taken off.
Clause 75 inserts a new section 103 (Register of holders of owner-builder
permits). This section provides that the BSA must keep a register of
persons holding owner-builder permits. The section specifies what
particulars must be recorded and also requires permittees to notify the BSA
of any changes to the particulars recorded in the register.
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Clause 75 inserts a new section 103A (When particulars must be removed
from owner-builder register). Under this section, particulars of the
permittee must be removed from the register when the term of the permit
ends.
Clause 75 inserts a new section 103B (Developer register) which provides
that the BSA must keep a register of relevant developers who have been
issued a direction under section 72(1) of the QBSA Act. Under the new
section the register must contain a note of each direction issued to a
developer and each time the developer is convicted of an offence against
section 72(10). However, no information may be included on the register
until relevant review and appeal periods have ended or the review or appeal
has been finally decided or not proceeded with. Section 103B also provides
in prescribed circumstances for the conviction of an executive officer of a
company developer to be included on the register.
Clause 75 inserts a new section 103C (When notes must be removed from
developer register) which specifies that a note in the developer register
must be removed 5 years after it is made.
Clause 75 inserts a new section 103D (Inspection of registers) which
provides for inspection of the registers at the BSA's Offices.
Clause 75 inserts a new section 103E (Publication of registers) which
provides that a register may be published on the BSA's internet site.
Clause 75 inserts a new section 103F (Certificates) which allows for the
issuing of a certificate by the BSA, upon payment of the appropriate fee,
certifying matters contained in a register.
Clause 76 omits section 105 (Inspector to produce identity card) and
replaces it with section 105 (Inspector to produce identity card and provide
information). The new section increases the obligations on an inspector
when exercising a power under the QBSA Act to produce an identity card
for inspection and provide other information as stated in the section.
Clause 77 inserts a new section 107A (Obstructing an inspector). The new
section makes it an offence for a person, without reasonable excuse, to
obstruct an inspector who is exercising a power under the QBSA Act.
Clause 78 amends section 108 (Obligation of assessment manager). The
effect of the amendment is to ensure that private certifiers who are acting as
assessment managers under the Integrated Planning Act 1997 are subject to
the same requirements as assessment managers under section 108.
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Clause 79 inserts a new section 108A (Documents that must be kept for 7
years). Section 108A provides that the documents specified in the section
must be kept for 7 years. The subject documents are building contracts
(plus other related documents specified in the section) and a building
contractor's financial records relevant to the Financial Requirements for
Licensing Policy of the Board.
Clause 79 inserts a new section 108B (False or misleading statement).
Under the section it is an offence for a person to knowingly state anything
to the BSA that is false or misleading in a material particular.
Clause 79 inserts a new section 108C (False or misleading document)
which provides that it is an offence for a person to give the BSA a
document containing information the person knows is false or misleading
in a material particular. Under the section it is also an offence for a person
to make an entry in a document required or permitted to be made or kept
under the QBSA Act which the person knows is false or misleading in a
material particular.
Clause 79 provides that section 108B and 108C do not apply to information
or documents to which section 53B applies.
Clause 79 inserts a new section 108D (Contracting out prohibited). This
section has been inserted to expressly state that a person cannot contract
out of the provisions of the QBSA Act. The provision is not intended to be
a policy change.
Clause 80 amends section 116 (Regulations) to allow for the Governor in
Council to make a regulation to prescribe the procedure relating to the
application for or renewal of licences under the QBSA Act.
Clause 81 inserts Part 8 (Transitional provisions for the Queensland
Building Services Authority and Other Legislation Amendment Act 2007)
into Schedule 1 (Transitional and validating provisions) of the QBSA Act.
Clause 81 inserts section 31 (Transitional provisions for existing
supervisors' licences) into Schedule 1. This section provides a transitional
provision for holders of existing supervisors' licences to be taken to hold a
nominee supervisor's licence.
Clause 81 inserts section 32 (Transitional qualifications for site
supervisors' licences) into Schedule 1. This section provides for
transitional qualifications for a site supervisor's licence.
Clause 81 inserts section 33 (Transitional provision for fire protection
occupational licences) into Schedule 1. The section provides that the
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offences under section 42C (Unlawful carrying out of fire protection work)
and 42D (Licensed contractor must not engage or direct unauthorised
person for fire protection work) do not apply until two years from the
commencement of section 30C (Fire protection occupational licence) of
the QBSA Act.
Clause 81 inserts section 34 (Transitional provision for certain fire
protection work) into Schedule 1. This section provides that section 42
(Unlawful carrying out of building work) of the QBSA Act does not apply
to those aspects of fire protection work which were previously not
regulated by the QBSA Act, until two years after the commencement of
section 34 of Schedule 1.
Clause 81 inserts section 35 (Transitional provision for photograph on
licence) into Schedule 1. The section provides for transitional provisions of
an administrative nature relevant to photographs on licences.
Clause 81 inserts section 36 (Transitional provision for continuation of
register of licensees) into Schedule 1. The section provides for transitional
provisions relevant to continuation of the licensee register.
Clause 82 inserts new definitions and amends a number of existing
definitions in Schedule 2 (Definitions) of the QBSA Act to accommodate
amendments made by the Bill.
Part 3 Amendment of Domestic
Building Contracts Act 2000
Clause 83 states the Act to be amended by Part 3 is the DBC Act.
Clause 84 amends section 7 (Meaning of domestic building contract) of the
DBC Act to clarify that a construction management contract under the
QBSA Act for the provision of building work services for domestic
building work is a domestic building contract.
Clause 84 also amends section 7 to exclude specified contracts from its
ambit. These contracts include a contract between a building contractor and
a building owner for the construction of 2 or more detached dwellings, and
a contract between the holder of an owner-builder permit and a building
contractor.
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Clause 85 amends section 9(2) of the DBC Act to correct a typographical
error.
Clause 86 increases the maximum penalty for contravening section 26
(Contracts must be in writing) of the DBC Act.
Clause 87 amends section 27 (General contents of contracts) of the DBC
Act to provide that the definition of specification details for a regulated
contract includes other details prescribed by regulation.
Clause 88 inserts a new section 31 (Documents that must be kept for seven
years) into the DBC Act. Under the new section a regulated contract
entered into by a building contractor and the plans, specifications and
variations relating to the contract must be kept for seven years from the
date they are put in writing.
Clause 89 increases the maximum penalty for contravening section 54
(Mixed -purpose contracts).
Clause 90 amends section 65 (Progress payments for contracts other than
designated stages contracts). The amendment is intended to clarify when a
progress payment may be demanded or received under a contract other than
a designated stages contract.
Part 4 Amendment of Professional
Engineers Act 2002
Clause 91 states the Act to be amended by Part 4 is the Professional
Engineers Act 2002.
Clause 92 amends the heading of Part 11 Professional Engineers Act 2002
to make it more descriptive of the content of the Part.
Clause 93 inserts a new section in Part 11, subdivision 2 (Transitional
references) of the Professional Engineers Act 2002 to correct an
administrative oversight with respect to professional engineer registrations
made under transitional provisions which apply the provisions of the
repealed Professional Engineers Act 1988.
© State of Queensland 2007