On 31 October 2018 the NSW Government passed the Building and Development Certifiers Act 2018 (the Act). The Act forms part of the Government's response to the Independent Review of the Building Professionals Act 2005 (the BP Act), also known as the Lambert Review. The Act will replace the BP Act and aims to improve the administration of certifiers in NSW with a simplified, modern and updated structure.
Key changes
Registration of certifiers
Under the Act, certifiers will no longer be referred to as accredited. Rather, any person who undertakes certification work will need to be registered by the Secretary of the Department of Finance (the Secretary). The Act will extend the duration of a registration licence from one year to up to five years, which will allow the Secretary to reward low-risk certifiers.
Similarly to the BP Act, the Secretary will be able to place conditions on a certifier's licence. The Act will provide the Secretary with further powers to issue a standard or methodology, such as a practice guide, as a condition of the certifier's licence.
Independence and impartiality
The Act improves the independence of certifiers to ensure that certifiers provide services with impartiality and make decisions that are robust. Accordingly, under the Act it will be an offence for a registered certifier to carry out certification work whilst having a conflict of interest in the certification work. The conflict of interest provisions under the Act have been broadened to cover all rather than some types of work undertaken by certifiers. The Act also introduces the concept of a private interest to help clarify what constitutes a conflict.
The Act will amend the Home Building Act 1989 (NSW) (HBA) to support consumers in choosing their own certifier. Under the amendments to the HBA, a holder of a contractor licence will be required to give consumers information that explains the role of the certifier before entering into a building contract with the consumer. This is to ensure that consumers are aware of the types of functions that certifiers are required to perform and the things that can be expected of them. Contractor licence holders will also be strictly prohibited from unduly influencing or attempting to influence the appointment of a certifier.
The Act will also amend the Environmental Planning and Assessment Act 1979 (NSW) (EPA) to prescribe circumstances in which a principal certifier is to be appointed by the Secretary, such as when it is in the public interest to do so. Under the amendments to the EPA, classes of development may also be prescribed in which the principal certifier is appointed in a manner prescribed by the regulations, such as through a scheme. This introduces a process aimed at ensuring greater independence of certifiers and providing the Government with the ability to intervene in the appointment of certifiers in specific circumstances.
Disciplinary proceedings
The Lambert Review raised issues concerning slow and ineffective processes for pursuing disciplinary proceedings. To address these concerns the Act introduces a more modern and effective compliance framework than the two-stage disciplinary process under the BA Act. The Act deletes the terms unsatisfactory professional conduct and professional misconduct and will provide grounds for taking disciplinary action. The Secretary may also serve a written notice on the certifier to show-cause why disciplinary action should not be taken. The process for review will also be replaced with the standardised internal review provisions found in the Administrative Decisions Review Act 1997 (NSW).
Accreditation of persons carrying out regulated work
The Act seeks to deliver on the Government's commitment to provide co-regulatory industry accreditation schemes for certain building professionals. The Act introduces the concept of regulated work which is the carrying out of work as an accredited practitioner under the EPA or any other work declared by an Act to be regulated work. Accreditation may be granted to a person to carry out regulated work by an accreditation authority, which includes non-government organisations that operate industry accreditation schemes. This seeks to ensure regulated work is only carried out by individuals with the appropriate skills, competencies and experience.
The Act will commence on a day to be appointed by proclamation.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
