Part 4 Disciplinary proceedings
50 Application of Part to former holders and others
(1) In this Part, a reference:(a) to the holder of a contractor licence includes a reference to an individual, or a partnership or corporation, who or that ceased to hold a contractor licence within the relevant period, and(b) to the holder of a supervisor or tradesperson certificate includes a reference to an individual who ceased to hold such a certificate within the relevant period, and(b1) (Repealed)(c) to a member of a partnership includes a reference to an individual or a corporation who or which ceased to be such a member within the relevant period, and(d) to an officer of a corporation includes a reference to an individual who ceased to be such an officer within the relevant period.(2) In this section, relevant period means the period of 5 years before a complaint is made under this Part.(3) In this section, a reference to a contractor licence or a supervisor or tradesperson certificate includes a reference to an instrument:(a) granted or issued under the Builders Licensing Act 1971, the Plumbers, Gasfitters and Drainers Act 1979 or the Electricity Act 1945, and(b) declared by the regulations to be the equivalent of a contractor licence or a supervisor or tradesperson certificate.
51 Improper conduct: generally
(1) A holder of a contractor licence who is authorised by the contractor licence to contract to do residential building work or specialist work, or a holder of a supervisor or tradesperson certificate, is guilty of improper conduct if the holder:(a) commits an offence against this Act or the regulations or section 307A or 307B of the Crimes Act 1900, whether or not an information has been laid for the offence, or(b) in the course of doing any work that the licence or certificate authorises the holder to do, fails to comply with the requirements applicable to the work made by or under this or any other Act in respect of the work, or(c) breaches a statutory warranty, or(d) in the case of specialist work, does the work otherwise than in a good and workmanlike manner or knowingly uses faulty or unsuitable materials in the course of doing the work, or(e) becomes a person who is disqualified by this Act or the regulations from holding the licence or certificate, or(f) commits an offence under the Plumbing and Drainage Act 2011 or the regulations under that Act, whether or not the holder has been convicted of the offence.(1A) (Repealed)(2) The holder of a contractor licence is guilty of improper conduct if the holder:(a) without reasonable cause, breaches a contract to do any work that the contractor licence authorises the holder to contract to do, or(b) without reasonable cause, does not comply with the requirements of a rectification order under Division 2 of Part 3A, or(c) does not comply with an order of the Tribunal or with an order of a court in respect of a building claim as referred to in Part 3A, or(d) employs a person or engages a person under a contract for services knowing the person is disqualified from holding a contractor licence, has had an application for an authority refused on a ground relating to the person’s character, honesty or integrity or has had an authority cancelled or suspended on a disciplinary ground, or(e) commits fraud or makes any misrepresentation in connection with any contract authorised by the contractor licence or any contract for the sale of any dwelling, structure or work that has resulted from, or been affected by, any work done under the authority of the contractor licence, or(f) is convicted of any offence under the Workers Compensation Act 1987 or the Workplace Injury Management and Workers Compensation Act 1998 or any regulations made under either of those Acts.(2A) (Repealed)(3) It is a sufficient defence to a complaint that the holder of a contractor licence has been guilty of improper conduct as referred to in subsection (1) (b), (c) or (d) in connection with work undertaken by the holder, if the holder proves to the satisfaction of the Director-General that the holder did all that could reasonably be required to ensure that a nominated supervisor for that work would exercise such degree of control over the doing of the work as would be necessary to prevent the occurrence of the improper conduct.(4) It is a sufficient defence to a complaint that the holder of a contractor licence has been guilty of improper conduct as referred to in subsection (2) (d) if, before employing or engaging the person concerned, the holder obtained the approval of the Director-General to the employment or engagement of the person.
52 Improper conduct: assisting others
The holder of a contractor licence, or of a supervisor or tradesperson certificate, is guilty of improper conduct if the holder aids or abets, or is knowingly concerned in any way in, the doing of any thing by another person in connection with residential building work or specialist work if the thing done:(a) constitutes improper conduct on the part of the person who did it, or(b) would constitute such conduct if the person who did it was authorised, by a contractor licence or certificate, to contract to do, or to do, the work concerned.
53 Improper conduct: nominated supervisors
(1) The holder of an endorsed contractor licence or a supervisor certificate who has control over the carrying out of residential building work or specialist work of any kind is guilty of improper conduct if:(a) the requirements applicable to the work made by or under this Act or any other Act are not complied with, or(b) a breach of a statutory warranty occurs in the course of doing that work, or(c) in the case of specialist work, the work is done otherwise than in a good and workmanlike manner or faulty or unsuitable materials are used in the course of doing the work.(2) The holder of an endorsed contractor licence or a supervisor certificate is to be presumed, in the absence of evidence to the contrary, to have control over the doing of all work for which the holder is a nominated supervisor.(3) It is a sufficient defence to a complaint that a holder has been guilty of improper conduct under this section if the holder proves to the satisfaction of the Director-General that the holder used all due diligence to prevent the occurrence of the improper conduct.
54 Improper conduct: members of partnerships or officers of corporations
(1) An individual who is a member of a partnership or an officer of a corporation that is the holder of a contractor licence is guilty of improper conduct if the holder does any of the things referred to in section 51 or 52.(2) The reference in subsection (1) to an individual who is a member of a partnership includes a reference to an individual who is an officer of a corporation that is a member of a partnership.(3) It is a sufficient defence to a complaint that an individual who is a member of a partnership, an officer of a corporation that is a member of a partnership or a director of a corporation (being a partnership or corporation that is the holder of a contractor licence) has been guilty of improper conduct if the individual proves to the satisfaction of the Director-General that:(a) the improper conduct occurred without the individual’s knowledge, or(b) the individual was not in a position to influence the conduct of the other members of the partnership or other officers of the corporation, of which the individual was a member or an officer, so as to prevent the occurrence of the improper conduct, or(c) the individual, being in such a position, used all due diligence to prevent the occurrence of the improper conduct.(4) Disciplinary action for improper conduct may be taken against an individual who is a member of a partnership, an officer of a corporation that is a member of a partnership or an officer of a corporation (being a partnership or corporation that is the holder of a contractor licence) whether or not any such disciplinary action has been taken against the partnership or corporation.(5) Division 2 applies to disciplinary action taken against an individual referred to in subsection (4) in the same way as it applies to disciplinary action taken against the holder of an authority, and references in that Division to the holder of an authority extend to an individual so referred to.
Division 2 Disciplinary action
In this Division, authority means:(a) a contractor licence, or(b) a supervisor certificate, or(c) a tradesperson certificate.(d) (Repealed)
56 Grounds for taking disciplinary action against holder of a contractor licence
The Director-General may take disciplinary action under section 62 against the holder of a contractor licence on any of the following grounds:(a) that the holder is not entitled to hold the contractor licence,(b) that the holder is not a fit and proper person to hold the contractor licence,(c) that the holder is guilty of improper conduct,(d) that there is not a sufficient number of nominated supervisors to ensure:(i) that the statutory warranties for residential building work are complied with, or(ii) that specialist work is done in a good and skilful manner and that good and suitable materials are used in doing the work, or(iii) that the requirements applicable to the work made by or under this or any other Act in respect of residential building work or specialist work are complied with,(e) in the case of a holder of a contractor licence that is a partnership—that any of the members of the partnership, or any of the officers of a corporation that is a member of the partnership, is not a fit and proper person to be a member of the partnership or an officer of the corporation or has been guilty of improper conduct,(f) in the case of the holder of a contractor licence that is a corporation—that any of the officers of the corporation is not a fit and proper person to be an officer of the corporation or has been guilty of improper conduct,(g) that the holder has failed to comply with a condition of the contractor licence imposed by a determination under this Part,(h) that the holder does not meet the standards of financial solvency determined by the Director-General to be appropriate to the class of licence held,(i) that, in the opinion of the Director-General, there is a risk to the public that the holder will be unable (whether or not for a reason relating to the financial solvency of the holder) to carry out work that the holder has contracted to do (whether before or after the commencement of this paragraph),(j) that the licence was improperly obtained,(k) that the Director-General has become aware of information about the licensee that, if known at the time the application for the licence was determined, would have been grounds for refusing the application,(l) that the holder has knowingly done any residential building work or specialist work before the relevant principal certifying authority has carried out any critical stage inspection required to be carried out under section 109E (3) (d) of the Environmental Planning and Assessment Act 1979 in relation to the work or has failed to give any notification required under that Act in relation to such an inspection.
57 Grounds for taking disciplinary action against holder of a supervisor or tradesperson certificate
The Director-General may take disciplinary action under section 62 against the holder of a supervisor or tradesperson certificate on any of the following grounds:(a) that the holder is not entitled to hold the certificate,(b) that the holder is not a fit and proper person to hold the certificate,(c) that the holder is guilty of improper conduct,(d) that the holder is not capable of doing all or part of the work that the certificate authorises the holder to do,(e) that the holder has failed to comply with a condition of the certificate imposed by a determination under this Part,(f) that the certificate was improperly obtained,(g) that the Director-General has become aware of information about the holder that, if known at the time the application for the certificate was determined, would have been grounds for refusing the application.
58 Complaints about holders of authorities
(1) A complaint may be made to the Director-General by any person about the holder of an authority on any of the grounds set out in this Division for taking disciplinary action against the holder of the authority.(2) A complaint must be in writing in a form approved by the Director-General.
(1) If a person makes a complaint to the Director-General about the holder of an authority on one of the grounds for taking disciplinary action set out in this Division, the Director-General may decide:(a) to take action under this Division in relation to the complaint, or(b) to take no action.(2) In particular, in deciding whether to take disciplinary action under this Division, the Director-General may do either or both of the following:(a) conduct an investigation under section 60,(b) invite the holder of the authority concerned to show cause under section 61, by way of a written or oral submission, as to why the Director-General should not take any disciplinary action under section 62.(3) However, the Director-General is not required to conduct any such investigation, or to invite a person to show cause, if the Director-General is of the opinion that it is in the public interest that the Director-General take immediate disciplinary action under section 62.
60 Investigation by Director-General
(1) The Director-General may, whether or not the Director-General has received a complaint, investigate:(a) any residential building work or specialist work, or(b) any holder of an authority,for the purpose of deciding whether or not to serve a notice under section 61.(2) The Director-General may, for the purpose of carrying out an investigation, request information from the Tribunal regarding any building dispute or building claim that has been, or is being, heard by the Tribunal. If such information is requested, the Tribunal must provide it.
(1) This section applies if the Director-General is of the opinion that there are reasonable grounds for believing that there are grounds for taking disciplinary action under section 62 against the holder of an authority.(2) The Director-General may serve a notice in writing on the holder of an authority, inviting the holder to show cause why he, she or it should not be dealt with under this Division.(3) The notice must state the grounds on which the holder is required to show cause and must specify the period, being at least 14 days, during which it must be done.(4) A holder of an authority on whom a notice to show cause has been served may, within the period specified in the notice, make submissions to the Director-General, orally or in writing, and provide evidence with respect to the matters to which the notice relates.(5) The Director-General may conduct any inquiry or make any investigation in relation to the matters to which the notice relates and the submissions made, if any, and the evidence adduced, if any, by or on behalf of the holder of the authority in relation to those matters that the Director-General thinks fit.(6) However, such inquiry or investigation need not be conducted if the Director-General is of the opinion that it is in the public interest to take immediate action.(7) If any submissions are made by a person in accordance with this section, the Director-General must, before determining whether or not to take disciplinary action under this Division, take those submissions into consideration.(8) If a show cause notice is served under this section on:(a) a member of a partnership, or(b) an officer of a corporation that is a member of a partnership, or(c) an officer of a corporation,being a partnership or corporation that is the holder of an authority, the other members of the partnership are, or the corporation is, also to be served with a copy of the notice, if it is practicable for the members or corporation to be so served.
61A Power to suspend authority when show cause notice served
(1) The Director-General may by notice in writing to the holder of an authority suspend the authority pending a determination by the Director-General of whether to take disciplinary action under this Act against the holder if:(a) a show cause notice has been served on the holder under section 61, and(b) the Director-General is of the opinion that there are reasonable grounds to believe that:(i) the holder has engaged in conduct that constitutes grounds for suspension of the authority, and(ii) it is likely that the holder will continue to engage in that conduct, and(iii) there is a danger that a person or persons may suffer significant harm, or significant loss or damage, as a result of that conduct unless action is taken urgently.(2) The Director-General may only suspend an authority under this section if satisfied that the grounds for disciplinary action specified in the show cause notice would, if established, justify the suspension or cancellation of the authority.(3) Such a suspension may not be imposed for a period of more than 60 days after the show cause notice is served. The period of the suspension is to be specified in the notice imposing the suspension.(4) The Director-General is not required to afford a person an opportunity to be heard before taking action against the person under this section.(5) The Director-General may revoke a suspension under this section at any time by notice in writing to the suspended person.(6) This section does not limit or otherwise affect any power to suspend an authority under section 79A of the Fair Trading Act 1987.
62 Disciplinary action that may be taken by Director-General
If, after compliance with this Division, the Director-General is satisfied that any ground on which disciplinary action may be taken against the holder of an authority has been established in relation to the holder, the Director-General may do any one or more of the following:(a) determine to take no further action against the holder,(b) caution or reprimand the holder,(c) make a determination requiring the holder to pay to the Director-General, as a penalty, an amount not exceeding $11,000 (in the case of an individual) or $50,000 (in the case of a corporation) within a specified time,(d) vary the authority held by the holder, by imposing a condition on the authority, including a condition requiring the holder to undertake a course of training relating to a particular type of work or business practice within a specified time,(e) suspend the authority for a period not exceeding its unexpired term,(f) cancel the authority,(g) disqualify the holder, either temporarily or permanently, from being any one or more of the following:(i) the holder of any authority, or any specified kind of authority,(ii) a member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of an authority,(iii) an officer of a corporation that is the holder of an authority.
The Director-General must not impose a monetary penalty on a person under section 62 (c) if:(a) the basis for the ground on which the person was required to show cause related to the commission of an offence, and(b) the person has been found guilty of the offence.
(1) The Director-General must give the holder of an authority who is the subject of a decision to take disciplinary action under section 62, or to take no further action, a notice in writing informing the holder of the decision.(2) The notice must include the reasons for the Director-General’s decision.
65 When disciplinary action becomes effective
(1) A decision of the Director-General under section 62, other than a decision to take no further action, has no effect until notice of the decision is served or taken to be served on the holder of the authority who is the subject of the decision, or a later time allowed by the Director-General.(2) If the Director-General suspends or cancels an authority under section 62, the suspension or cancellation takes effect on and from a day determined by the Director-General and notified, by notice in writing, to the holder of the authority.(3) A person disqualified under section 62 must not, while disqualified:(a) hold an authority, or(b) do any work for which this Act requires an authority to be held.Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.
(4) A person is not prohibited by subsection (3) from doing anything done under the supervision of a person appointed under section 47A.(5) If the Director-General suspends or cancels an authority held by a person, or disqualifies a person from holding an authority, under section 62, the Director-General may refuse to issue or renew any authority affected by the decision to the person during the period between the making of the decision and the serving of notice on the person.(6) The regulations may make provision regarding when a document is taken to have been served.
66 Return of cancelled, suspended or varied authority
(1) If the Director-General suspends, varies or cancels an authority, the holder of the authority must return the authority within the period specified by the Director-General when suspending, varying or cancelling the authority by:(a) lodging the authority at an office of the Department of Fair Trading, or(b) if unable to lodge the authority, lodging at an office of the Department of Fair Trading a statement signed by the person providing accurate and complete details of why the authority cannot be lodged.Maximum penalty: 40 penalty units in the case of a corporation and 20 penalty units in any other case.
(2) When subsection (1) has been complied with by a person because of a variation, the Director-General must issue an appropriate replacement authority for the residue of the term of the former authority.
67 Enforcement of monetary penalties and payment of costs
(1) When a decision of the Director-General to impose a monetary penalty has taken effect and the amount required to be paid has not been paid to the Director-General:(a) any authority held by the person required to pay is taken to be suspended until that amount is paid to the Director-General or, if that amount is not paid to the Director-General before the authority would, but for this paragraph, expire, to be cancelled, and(b) that amount may be recovered by the Director-General as a debt in any court of competent jurisdiction.(2) The Director-General may agree in writing to extend the time for payment by a person of any amount referred to in subsection (1) and, in any such case, that subsection does not have effect in relation to the person during any such extension of time.(3) The Director-General’s failure to enter into an agreement under this section cannot be reviewed by the Administrative Decisions Tribunal in an application for review made under this Act.
68 Liability for offences not affected
(1) A decision to take disciplinary action against a person under section 62 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 Director-General is not prevented from taking disciplinary action under section 62 merely because the holder of the authority concerned is subject to criminal or civil proceedings that relate to the same matters or incident to which the disciplinary action relates.
69 Protection if complaint lodged
An insurer under a contract of insurance entered into for the purposes of Part 6 who makes a complaint in relation to a contractor insured under such a contract in relation to one of the grounds for taking disciplinary action referred to in section 56 is not liable in any way for any loss, damage or injury suffered by the insured or any other person because the complaint is made.
70–83 (Repealed)