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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 1 February 2020 to date (accessed 28 February 2020 at 11:28)
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   Proceedings for offences
(1)  Proceedings for an offence against this Act or the regulations may be dealt with summarily before the Local Court.
(2)  Proceedings for an offence against this Act or the regulations may be commenced within, but not later than, 2 years after the date on which the offence is alleged to have been committed.
34B   Penalty notices
(1)  An authorised officer within the meaning of Part 3A may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.
(2)  A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.
(3)  The Fines Act 1996 applies to a penalty notice issued under this section.
Note.
 The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.
(4)  The amount payable under a penalty notice issued under this section is the amount prescribed for the alleged offence by the regulations (not exceeding the maximum amount of penalty that could be imposed for the offence by a court).
(5)  This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.
34C   Liability of directors etc for offences by corporation—accessory to the commission of offences
(1)  For the purposes of this section, a corporate offence is an offence against this Act or the regulations that is capable of being committed by a corporation.
(2)  A person commits an offence against this section if—
(a)  a corporation commits a corporate offence, and
(b)  the person is—
(i)  a director of the corporation, or
(ii)  an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the corporate offence, and
(c)  the person—
(i)  aids, abets, counsels or procures the commission of the corporate offence, or
(ii)  induces, whether by threats or promises or otherwise, the commission of the corporate offence, or
(iii)  conspires with others to effect the commission of the corporate offence, or
(iv)  is in any other way, whether by act or omission, knowingly concerned in, or party to, the commission of the corporate offence.
Maximum penalty—The maximum penalty for the corporate offence if committed by an individual.
(3)  The prosecution bears the legal burden of proving the elements of the offence against this section.
(4)  The offence against this section can only be prosecuted by a person who can bring a prosecution for the corporate offence.
(5)  This section does not affect the liability of the corporation for the corporate offence, and applies whether or not the corporation is prosecuted for, or convicted of, the corporate offence.
(6)  This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are concerned in, or party to, the commission of the corporate offence.
34D   Liability of directors etc for specified offences by corporation—offences attracting executive liability
(1)  For the purposes of this section, an executive liability offence is—
(a)  an offence against section 13(7) or (8) that is committed by a corporation, or
(b)  an offence against the regulations that—
(i)  is created under section 12A, and
(ii)  is prescribed by the regulations as an offence to which this section applies, and
(iii)  is committed by a corporation.
(2)  A person commits an offence against this section if—
(a)  a corporation commits an executive liability offence, and
(b)  the person is—
(i)  a director of the corporation, or
(ii)  an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence, and
(c)  the person—
(i)  knows that the executive liability offence (or an offence of the same type) would be or is being committed or is recklessly indifferent as to whether it would be or is being committed, and
(ii)  fails to take all reasonable steps to prevent or stop the commission of that offence.
Maximum penalty—200 penalty units.
(3)  The prosecution bears the legal burden of proving the elements of the offence against this section.
(4)  The offence against this section can only be prosecuted by a person who can bring a prosecution for the executive liability offence.
(5)  This section does not affect the liability of the corporation for the executive liability offence, and applies whether or not the corporation is prosecuted for, or convicted of, the executive liability offence.
(6)  This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are accessories to the commission of the executive liability offence or are otherwise concerned in, or party to, the commission of the executive liability offence.
(7)  In this section—
director has the same meaning it has in the Corporations Act 2001 of the Commonwealth.
reasonable steps, in relation to the commission of an executive liability offence, includes, but is not limited to, such action (if any) of the following kinds as is reasonable in all the circumstances—
(a)  action towards—
(i)  assessing the corporation’s compliance with the provision creating the executive liability offence, and
(ii)  ensuring that the corporation arranged regular professional assessments of its compliance with the provision,
(b)  action towards ensuring that the corporation’s employees, agents and contractors are provided with information, training, instruction and supervision appropriate to them to enable them to comply with the provision creating the executive liability offence so far as the provision is relevant to them,
(c)  action towards ensuring that—
(i)  the plant, equipment and other resources, and
(ii)  the structures, work systems and other processes,
relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,
(d)  action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.
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.
(4)  The regulations may—
(a)  prescribe information that is required to be provided to a subcontractor when entering into a construction contract, and
(b)  create offences punishable by a penalty not exceeding 100 penalty units in relation to that requirement.
36   Disclosure of information
A person must not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made—
(a)  with the consent of the person from whom the information was obtained, or
(b)  in connection with the administration or execution of this Act, or
(c)  for the purposes of legal proceedings arising out of this Act or for the purposes of a report of legal proceedings, or
(d)  in accordance with a requirement imposed under the Ombudsman Act 1974, or
(e)  with other lawful excuse.
Maximum penalty—100 penalty units.
36A   Delegation
The Minister may delegate the exercise of any function of the Minister under this Act (other than this power of delegation) to—
(a)  the Secretary, or
(b)  a person employed in a Public Service agency responsible to the Minister, or
(c)  a person, or a class of persons, authorised for the purposes of this section by the regulations.
36B   (Repealed)
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.