Building and Construction Industry Security of Payment Act 1999

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.

Schedule 1 (Repealed)

Schedule 2 Savings and transitional provisions

(Section 37)

Part 1 – Preliminary

1 Savings and transitional regulations

(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act.

(2) Such a provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later day.

(3) To the extent to which such a provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:

(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of that publication, or

(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of that publication.

Part 2 – Provisions consequent on enactment of Building and Construction Industry Security of Payment Act 1999

2 Certain construction contracts not affected

A provision of this Act does not apply to a construction contract entered into before the commencement of that provision.

Part 3 – Provisions consequent on enactment of Building and Construction Industry Security of Payment Amendment Act 2002

3 Application of amendments

An amendment made to this Act by the Building and Construction Industry Security of Payment Amendment Act 2002 does not apply to or in respect of a payment claim served before the commencement of the amendment and any such payment claim is to be dealt with in accordance with this Act as if the amendment had not been made.

Part 4 – Provisions consequent on enactment of Building and Construction Industry Security of Payment Amendment Act 2010

4 Application of amendments

An amendment made to this Act by the Building and Construction Industry Security of Payment Amendment Act 2010 extends to matters arising before the commencement of the amendment (including an adjudication application made before that commencement and pending on that commencement).

Part 5 – Provision consequent on enactment of Building and Construction Industry Security of Payment Amendment Act 2013

5 Application of amendments

An amendment made to this Act by the Building and Construction Industry Security of Payment Amendment Act 2013 does not apply in relation to a construction contract entered into before the commencement of the amendment.

Historical notes

The following abbreviations are used in the Historical notes:

Am	amended	LW	legislation website	Sch	Schedule
Cl	clause	No	number	Schs	Schedules
Cll	clauses	p	page	Sec	section
Div	Division	pp	pages	Secs	sections
Divs	Divisions	Reg	Regulation	Subdiv	Subdivision
GG	Government Gazette	Regs	Regulations	Subdivs	Subdivisions
Ins	inserted	Rep	repealed	Subst	substituted

Table of amending instruments Building and Construction Industry Security of Payment Act 1999 No 46. Assented to 5.10.1999. Date of commencement, 26.3.2000, sec 2 and GG No 37 of 17.3.2000, p 1955. This Act has been amended as follows:

2002	No 133	Building and Construction Industry Security of Payment Amendment Act 2002. Assented to 18.12.2002. Date of commencement, 3.3.2003, sec 2 and GG No 54 of 28.2.2003, p 3503.
2003	No 82	Statute Law (Miscellaneous Provisions) Act (No 2) 2003. Assented to 27.11.2003. Date of commencement of Sch 3, assent, sec 2 (1).
2008	No 62	Statute Law (Miscellaneous Provisions) Act 2008. Assented to 1.7.2008. Date of commencement of Sch 2.4, assent, sec 2 (2).
2010	No 57	Personal Property Securities Legislation Amendment Act 2010. Assented to 28.6.2010. Date of commencement of Sch 1.1, 30.1.2012, sec 2 and 2011 (661) LW 16.12.2011.
	No 103	Building and Construction Industry Security of Payment Amendment Act 2010. Assented to 29.11.2010. Date of commencement, 28.2.2011, sec 2 and 2011 (1) LW 14.1.2011.
2013	No 93	Building and Construction Industry Security of Payment Amendment Act 2013. Assented to 20.11.2013. Date of commencement, 21.4.2014, sec 2 and 2014 (182) LW 11.4.2014.
	No 95	Civil and Administrative Legislation (Repeal and Amendment) Act 2013. Assented to 20.11.2013. Date of commencement, 1.1.2014, sec 2.
2016	No 55	Statute Law (Miscellaneous Provisions) Act (No 2) 2016. Assented to 25.10.2016. Date of commencement of Sch 1.6, 6.1.2017, sec 2 (1).
2017	No 25	Electronic Transactions Legislation Amendment (Government Transactions) Act 2017. Assented to 27.6.2017. Date of commencement, assent, sec 2.

Table of amendments

Sec 3	Am 2002 No 133, Sch 1 [1]–[4].
Sec 4	Am 2002 No 133, Sch 1 [5]–[7]; 2013 No 93, Sch 1 [1] [2]; 2016 No 55, Sch 1.6 [1].
Sec 5	Am 2002 No 133, Sch 1 [8] [9].
Sec 6	Am 2002 No 133, Sch 1 [10].
Sec 8	Am 2002 No 133, Sch 1 [11] [12].
Sec 9	Am 2002 No 133, Sch 1 [13] [14].
Sec 10	Am 2002 No 133, Sch 1 [15] [16].
Sec 11	Am 2002 No 133, Sch 1 [17] [18]; 2008 No 62, Sch 2.4; 2010 No 57, Sch 1.1; 2013 No 93, Sch 1 [3] [4].
Sec 12	Am 2002 No 133, Sch 1 [19]–[21].
Sec 12A	Ins 2013 No 93, Sch 1 [5].
Sec 13	Am 2002 No 133, Sch 1 [22]–[24]; 2013 No 93, Sch 1 [6] [7].
Sec 15	Am 2002 No 133, Sch 1 [25] [26].
Sec 16	Am 2002 No 133, Sch 1 [27] [28].
Sec 17	Subst 2002 No 133, Sch 1 [29].
Sec 19	Am 2002 No 133, Sch 1 [30].
Sec 20	Am 2002 No 133, Sch 1 [31] [32].
Sec 21	Am 2002 No 133, Sch 1 [33].
Sec 22	Am 2002 No 133, Sch 1 [34]–[36].
Secs 23, 24	Subst 2002 No 133, Sch 1 [37].
Sec 25	Subst 2002 No 133, Sch 1 [38].
Sec 26	Am 2002 No 133, Sch 1 [39].
Part 3, Div 2A	Ins 2010 No 103, Sch 1 [1].
Sec 26A	Ins 2010 No 103, Sch 1 [1]. Am 2013 No 93, Sch 1 [8]; 2016 No 55, Sch 1.6 [2].
Secs 26B–26F	Ins 2010 No 103, Sch 1 [1].
Sec 27	Am 2002 No 133, Sch 1 [40] [41].
Sec 28	Am 2002 No 133, Sch 1 [42]–[44]; 2013 No 95, Sch 2.15.
Sec 29	Am 2002 No 133, Sch 1 [45].
Sec 30	Subst 2002 No 133, Sch 1 [46].
Sec 31	Am 2002 No 133, Sch 1 [47]; 2017 No 25, Sch 1.7 [1] [2].
Sec 34	Subst 2002 No 133, Sch 1 [48].
Sec 34A	Ins 2010 No 103, Sch 1 [2].
Sec 36	Rep 2003 No 82, Sch 3. Ins 2013 No 93, Sch 1 [9]. Am 2016 No 55, Sch 1.6 [2].
Sec 36A	Ins 2013 No 93, Sch 1 [9].
Sec 36B	Ins 2013 No 93, Sch 1 [9]. Am 2016 No 55, Sch 1.6 [2].
Sec 38	Am 2002 No 133, Sch 1 [49].
Sch 1	Rep 2003 No 82, Sch 3.
Sch 2	Am 2002 No 133, Sch 1 [50] [51]; 2010 No 103, Sch 1 [3] [4]; 2013 No 93, Sch 1 [10] [11].