Part 6 Requirements relating to accredited certifiers
Division 1 Record keeping and notifications
60 Record keeping by accredited certifiers
(1) An accredited certifier must, in accordance with the regulations, cause such documents and records to be kept as are prescribed by the regulations.(2) If the Board requests, by notice in writing served on an accredited certifier, that the accredited certifier provide a copy to the Board of any document or record required to be kept under subsection (1), the accredited certifier must provide a copy of the document or record to the Board within the time specified in the notice.Maximum penalty: 50 penalty units.
61 Board to be notified of certain events
(1) An accredited certifier must notify the Board in writing of each of the following events within 7 days of the accredited certifier becoming aware of the event:(a) the suspension or cancellation of an equivalent authorisation held by the accredited certifier,(b) the variation of conditions of, or imposition of conditions on, an equivalent authorisation held by the accredited certifier,(c) the institution of proceedings against the accredited certifier for an offence that relates to the functions or obligations of a person as an accredited certifier or the holder of an equivalent authorisation, or involves fraud or dishonesty,(d) the investigation of a complaint against the accredited certifier by an authority of another jurisdiction in relation to anything done or omitted by the accredited certifier as the holder of an equivalent authorisation,(e) the accredited certifier’s ceasing to be covered by the insurance required by Division 2 (unless notification as referred to in subsection (2) (b) has already been provided to the Board),(f) any other event prescribed by the regulations for the purposes of this subsection.Maximum penalty: 50 penalty units.
(2) At least 7 days before the insurance held by an accredited certifier for the purposes of Division 2 expires, the accredited certifier must notify the Board in writing:(a) that arrangements have been made for the accredited certifier to be covered from that expiry by further insurance and including in that notification evidence of those arrangements, or(b) stating that the accredited certifier has been unable to obtain further insurance to take effect from that expiry.Maximum penalty: 50 penalty units.
(3) An accredited certifier must notify the Board in writing of any change required to the particulars recorded in the Register in relation to the accredited certifier (other than a change required because of an event referred to in subsection (1)) within 14 days of the accredited certifier becoming aware of the need for the change.Maximum penalty: 10 penalty units.
This Division applies to:(a) accredited certifiers, and(b) such other persons as are prescribed by the regulations for the purposes of this section (referred to in this Division as building practitioners).
63 Accredited certifiers to have required insurance
(1) An accredited certifier must not:(a) exercise the functions of a certifying authority, or(b) hold himself or herself out as being covered by the required insurance,unless he or she is covered by the required insurance.Maximum penalty: 100 penalty units.
(2) For the purposes of this section, an accredited certifier is covered by the required insurance if he or she is indemnified by an insurance policy that complies with the regulations against any liability to which he or she may become subject as a result of exercising the functions of a certifying authority.(3) For the purposes of this section, an accredited certifier who is employed by a council to exercise the functions of a certifying authority on its behalf, whether within or beyond its area, is covered by the required insurance if the council is indemnified by its general insurance policy against any liability to which it may become subject as a result of the exercise of those functions by the accredited certifier.
(1) In this section:building work includes the design or inspection of building work and the issuing of a Part 4A certificate or complying development certificate in respect of building work.
subdivision work includes the design or inspection of subdivision work and the issuing of a Part 4A certificate or complying development certificate in respect of subdivision work.
(2) A building practitioner must not:(a) carry out any building work or subdivision work, or(b) hold himself or herself out as being covered by the required insurance,unless he or she is covered by the required insurance.Maximum penalty: 500 penalty units (in the case of a corporation) or 100 penalty units (in any other case).
(3) For the purposes of this section, a building practitioner is covered by the required insurance if he or she is indemnified by an insurance policy that complies with the regulations against any liability to which he or she may become subject as a result of carrying out building work or subdivision work.
65 Regulations under this Division
Without limiting the matters for which the regulations may provide in relation to an insurance policy, the regulations may make provision for or with respect to the following:(a) the persons or bodies who may be the insurers under such a policy,(b) the period for which the insured is to be indemnified under such a policy,(c) the amount in respect of which the insured is to be indemnified under such a policy,(d) the risks in respect of which the insured is to be indemnified under such a policy,(e) the form in which such a policy must be expressed,(f) the obligations on a person who is the insurer under such a policy,(g) the issue of such a policy in respect of liability incurred by a person who was formerly an accredited certifier.
Division 3 Conflicts of interest
(1) An accredited certifier must not issue a Part 4A certificate or complying development certificate in relation to any aspect of development:(a) if he or she has been involved in the design of that aspect of the development, or(b) if he or she has been involved in the carrying out of work on that aspect of the development, or(c) if he or she is the applicant for the certificate or is related to the applicant for the certificate, or(d) if he or she is associated with the council of the area in which the development is to be carried out, or(e) if he or she is related to a person who was involved in the design or construction of that aspect of the development, or(f) if he or she has a pecuniary interest in that or any other aspect of the development.Maximum penalty: 300 penalty units.
(2) If an accredited certifier issues (otherwise than as a principal certifying authority) a compliance certificate of the kind referred to in section 109C (1) (a) (i) of the Environmental Planning and Assessment Act 1979 for an aspect of development, the accredited certifier:(a) does not contravene subsection (1) (a) by being involved in the design of that aspect of the development, and(b) does not contravene subsection (1) (e) by being related to a person who was involved in the design of that aspect of the development.(3) Subsection (1) does not make it an offence for an accredited certifier who is an employee of a council to issue a Part 4A certificate in relation to development that is to be carried out in the area of the council if:(a) the certificate relates to development for which the council is not the consent authority, and(b) the accredited certifier issues the certificate in the course of his or her employment with the council.(4) Subsection (1) does not apply to any action of an accredited certifier that is done in accordance with an exemption issued under section 71.
67 Meaning of being involved in the design of an aspect of the development
(1) For the purposes of this Division, an accredited certifier is involved in the design of an aspect of development:(a) if the accredited certifier is involved in the preparation of the plans or specifications for that aspect of the development, or(b) in such other circumstances as may be prescribed by the regulations.(2) Despite subsection (1), the regulations may prescribe, for the purposes of this Division, circumstances in which an accredited certifier is taken not to be involved in the design of an aspect of development.
68 Meaning of being related to another person
For the purposes of this Division, an accredited certifier is related to another person if:(a) the accredited certifier is an employer, partner or employee of the other person, or(b) the accredited certifier is employed by the same employer as the other person, or(c) the accredited certifier is employed by a subsidiary (within the meaning of the Corporations Act 2001 of the Commonwealth) of the other person or the other person controls (within the meaning of section 50AA of that Act) the employer of the accredited certifier, or(d) the other person is employed by a subsidiary (within the meaning of the Corporations Act 2001 of the Commonwealth) of the employer of the accredited certifier or the accredited certifier controls (within the meaning of section 50AA of that Act) the employer of the other person, or(e) the accredited certifier is a spouse, de facto partner (whether of the same or the opposite sex), sibling, parent or child of the other person, or(f) the accredited certifier has a contractual arrangement with the other person that might reasonably be seen to give rise to a conflict between the accredited certifier’s duties as an accredited certifier and the accredited certifier’s interests under the arrangement.
69 Meaning of being associated with a council
For the purposes of this Division, an accredited certifier is associated with a council if the accredited certifier:(a) is a councillor or employee of the council, or(b) is related to a councillor or employee of the council, or(c) has a contractual arrangement with the council that might reasonably be seen to give rise to a conflict between the accredited certifier’s duties as an accredited certifier and the accredited certifier’s interests under the arrangement.
70 Meaning of having a pecuniary interest
(1) For the purposes of this Division, an accredited certifier has a pecuniary interest in an aspect of development if there is a reasonable likelihood or expectation of appreciable financial gain or loss to the accredited certifier, or to a person to whom he or she is related.(2) However, an accredited certifier does not have such a pecuniary interest if the interest is so remote or insignificant that it could not reasonably be regarded as likely to influence any decision the person might make in relation to that aspect of the development.
71 Board may grant exemptions from certain provisions relating to conflicts of interest
(1) The Board may, on application, grant an exemption in writing to an accredited certifier from all or any of the requirements of section 66 (1) (d) in relation to a particular development or class of development.(2) An exemption may be granted subject to conditions.
Division 4 Other offences relating to improper conduct
72 Acting in a manner not authorised by certificate of accreditation
An accredited certifier must not do any thing that is required by law to be done by an accredited certifier if the accredited certifier’s certificate of accreditation does not authorise the accredited certifier to do that thing.Maximum penalty: 300 penalty units.
73 Contravention of terms and conditions of accreditation
An accredited certifier must not contravene or fail to comply with any term or condition of the accredited certifier’s certificate of accreditation.Maximum penalty: 300 penalty units.
74 Notice to be given of certain matters
(1) A person (other than a council) who is appointed as the principal certifying authority in relation to development must give notice, in accordance with this section, to the person who made the appointment of:(a) the suspension or cancellation of the relevant certificate of accreditation, or(b) any change in the certificate of accreditation or conditions imposed on it that would prevent the appointed person from carrying out his or her duties as principal certifying authority for the development.Maximum penalty: 50 penalty units.
(2) A person who is required to give a notice under this section must give the notice in writing within 7 days after the person becomes aware of the matters to which the notice relates.