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Contents (1999 - 46)
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Building and Construction Industry Security of Payment Act 1999 No 46
Current version for 27 June 2017 to date (accessed 21 September 2019 at 23:15)
Part 4
Part 4 Miscellaneous
33   Act binds Crown
This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.
34   No contracting out
(1)  The provisions of this Act have effect despite any provision to the contrary in any contract.
(2)  A provision of any agreement (whether in writing or not):
(a)  under which the operation of this Act is, or is purported to be, excluded, modified or restricted (or that has the effect of excluding, modifying or restricting the operation of this Act), or
(b)  that may reasonably be construed as an attempt to deter a person from taking action under this Act,
is void.
34A   Nature of proceedings for offences
Proceedings for an offence under this Act may be dealt with summarily before the Local Court.
35   Regulations
(1)  The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2)  The regulations may, either unconditionally or subject to conditions, exempt:
(a)  any specified person or class of persons, or
(b)  any specified matter or class of matters,
from the operation of this Act or of any specified provision of this Act.
(3)  The commencement of a regulation referred to in section 5, 6 or 7 does not affect the operation of this Act with respect to construction work carried out, or related goods and services supplied, under a construction contract entered into before that commencement.
36   Investigation of compliance with provisions regarding supporting statements
(1)  The Secretary may, by order in writing, appoint a Public Service employee (an authorised officer) for the purpose of investigating compliance with section 13 (7) or (8).
(2)  An authorised officer may, by notice in writing, require a person whom the officer reasonably believes:
(a)  is or was a head contractor, or
(b)  is or was employed or engaged by a person whom the officer reasonably believes is or was a head contractor,
to provide the officer with information, and all documents, relating to compliance with section 13 (7) or (8) and in particular relating to the payment of subcontractors by or on behalf of the head contractor in respect of specified construction work.
(3)  A person must not:
(a)  refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it, or
(b)  in purported compliance with such a notice, provide information or a document knowing that the information or document is false or misleading in a material particular.
Maximum penalty: 200 penalty units or 3 months imprisonment, or both.
(4)  A person is not excused from providing information or a document in response to a notice under this section on the ground that the information or document may tend to incriminate the head contractor.
36A   Dealing with documents produced
(1)  An authorised officer may inspect a document produced in response to a notice under section 36 and may make copies of, or take extracts from, the document.
(2)  An authorised officer may:
(a)  take possession, and
(b)  retain possession for as long as is necessary for the purposes of this Act,
of a document produced in response to a notice under section 36, if the person otherwise entitled to possession of the document is supplied, as soon as practicable, with a copy certified by an officer to be a true copy.
(3)  A certified copy provided under subsection (2) is receivable in all courts as if it were the original.
(4)  Until a certified copy of a document is provided under subsection (2), the person having possession of the document must, at such times and places as he or she thinks appropriate, permit:
(a)  the person otherwise entitled to possession of the document, or
(b)  a person authorised by the person so entitled,
to inspect the document and make copies of, or take extracts from, the document.
36B   Preservation of secrecy
(1)  A person engaged in the administration of this Act must not:
(a)  in the course of that administration, disclose to another person so engaged any information or the contents of any document provided in response to a notice under section 36 without informing the other person that the information or document was so provided, or
(b)  otherwise than in the course of that administration, disclose any such information or contents to any person without the written permission of the Secretary given in relation to the disclosure.
Maximum penalty: 200 penalty units.
(2)  A person who was, but is no longer, engaged in the administration of this Act must not, without the written permission of the Secretary, disclose to any other person any information or the contents of any document provided in response to a notice under section 36 that came to his or her knowledge in the course of that administration.
Maximum penalty: 200 penalty units.
(3)  It is not a contravention of subsection (1) or (2) if a person discloses any such information or contents:
(a)  in any proceedings for an offence against this Act, or
(b)  in any civil proceedings arising under a construction contract, whether under Part 3 or otherwise, or
(c)  in any legal proceedings where the disclosure is made in answering a question that the person is compellable to answer in those proceedings.
37   Savings and transitional provisions
Schedule 2 has effect.
38   Review of Act
(1)  The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
(2)  The review is to be undertaken as soon as possible after the period of 3 years from the date of assent to this Act.
(3)  A report on the outcome of the review is to be tabled in each House of Parliament within 3 months after the end of the period of 3 years.
(4)  A further review of this Act (as amended by the Building and Construction Industry Security of Payment Amendment Act 2002) is to be undertaken by the Minister as soon as possible after the period of 12 months from the commencement of Schedule 1 [29] to that Act.
(5)  A report on the outcome of the further review is to be tabled in each House of Parliament within 3 months after the end of that period of 12 months.