Building and Construction Industry (Security of Payment) Amendment Bill 2026
58—1 page i
Western Australia
Building and Construction Industry (Security of
Payment) Amendment Bill 2026
Contents
Part 1 — Preliminary
Short title 2
Commencement 2
Part 2 — Building and Construction
Industry (Security of Payment)
Act 2021 amended
Act amended 3
Section 3 amended 3
Section 4 amended 3
Section 14 amended 4
Part 3 Division 1A inserted 5
Division 1A — Payment withholding
27A. Terms used 5
27B. Application of Division 5
27C. Head contractor must give statement to
principal 6
27D. Principal may withhold payments 8
27E. Right to withhold prevails 9
27F. Adjudication application taken to be
withdrawn if progress payment withheld 10
27G. Payment of amount withheld 11
Section 30 amended 11
Section 34 amended 11
Section 42 amended 12
Section 45 amended 12
Section 50 amended 13
Section 62 amended 13
Building and Construction Industry (Security of Payment) Amendment
Bill 2026
Contents
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14. Part 4 heading replaced 13
Part 4 — Statutory trusts
Division 1 — Retention money trusts
15. Section 69 amended 13
16. Section 70 amended 14
17. Section 71 amended 15
18. Section 72 amended 15
19. Section 73 amended 16
20. Section 74 amended 16
21. Section 76 amended 17
22. Part 4 Division 2 inserted 17
Division 2 — Construction trusts
Subdivision 1 — Preliminary
76A. Terms used 17
76B. Continued application of Division 18
Subdivision 2 — Certain construction contracts
identified as trust contracts
76C. State agency contracts 18
76D. First-tier subcontracts 19
76E. Related entity subcontracts 19
Subdivision 3 — Establishment of construction trust
76F. Creation of construction trust 21
76G. Head contractor is both trustee and
beneficiary of construction trust 22
76H. Beneficial interests of contracting parties 23
76I. Beneficial interests of subcontractors 24
76J. Determination of amount of construction
payment entitlement 25
76K. Dissolution of construction trusts 26
Subdivision 4 — Construction trust accounts
76L. Obligations of trustees 27
76M. Requirements for construction trust
accounts 28
76N. Payments into construction trust accounts 29
76O. Trustee to cover shortfalls 29
76P. Restriction on withdrawals from
construction trust accounts 30
76Q. Amounts in construction trust account
unavailable for trustee’s debts 32
76R. Insufficient amounts available for
beneficiary subcontractors 32
76S. Closure of construction trust accounts 33
Building and Construction Industry (Security of Payment) Amendment
Bill 2026
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23. Part 4 Division 3 heading inserted 34
Division 3 — Obligations and restrictions relating to
statutory trusts
24. Section 77 amended 34
25. Section 78 replaced 35
78. Trust account interest and fees 35
26. Section 79 amended 36
27. Section 83 deleted 36
28. Section 85A inserted 36
85A. Effect of assignment of beneficial
entitlements 36
29. Section 86 amended 37
30. Section 87 deleted 37
31. Section 111 amended 37
32. Section 112A inserted 38
112A. No liability against protected parties 38
33. Section 114 amended 39
34. Section 115 amended 40
35. Part 6A inserted 41
Part 6A — Transitional and savings provisions for
Building and Construction Industry (Security
of Payment) Amendment Act 2026
120A. Term used: amending Act 41
120B. Interpretation Act 1984 not affected 41
120C. Savings and transitional regulations 41
120D. Transitional arrangements for construction
trusts 41
120E. Transitional arrangements for
adjudications and adjudication reviews 42
36. Various references to “retention money” deleted 43
Part 3 — Building Services
(Registration) Act 2011 amended
37. Act amended 44
38. Section 17 amended 44
39. Section 18 amended 44
page 1
Western Australia
LEGISLATIVE ASSEMBLY
Building and Construction Industry (Security of
Payment) Amendment Bill 2026
A Bill for
An Act to amend the Building and Construction Industry (Security of
Payment) Act 2021 and to make amendments to the Building Services
(Registration) Act 2011.
The Parliament of Western Australia enacts as follows:
Building and Construction Industry (Security of Payment) Amendment
Bill 2026
Part 1 Preliminary
s. 1
page 2
Part 1 — Preliminary1
Short title2
This is the Building and Construction Industry (Security of3
Payment) Amendment Act 2026.4
Commencement5
This Act comes into operation as follows —6
(a) Part 1 — on the day on which this Act receives the7
Royal Assent;8
(b) the rest of the Act — on a day fixed by proclamation,9
and different days may be fixed for different provisions.10
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Part 2 — Building and Construction Industry (Security1
of Payment) Act 2021 amended2
3. Act amended3
This Part amends the Building and Construction Industry4
(Security of Payment) Act 2021.5
4. Section 3 amended6
Delete section 3(2)(c) and insert:7
8
(c) providing those persons with statutory remedies9
and other actions in equity by establishing a10
system of trusts in relation to the following —11
(i) money retained to secure the12
performance of the contractual13
obligations of those persons;14
(ii) certain rights, payments and15
entitlements relating to work or supply16
undertaken by those persons;17
and18
19
5. Section 4 amended20
In section 4(1) insert in alphabetical order:21
22
construction payment entitlement has the meaning23
given in section 76F(1);24
construction trust has the meaning given in25
section 76F(2);26
construction trust account has the meaning given in27
section 76A;28
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GTE has the meaning given in the Government1
Trading Enterprises Act 2023 section 3(1);2
State agency —3
(a) has the meaning given in the Procurement4
Act 2020 section 5; and5
(b) includes any entity prescribed by the6
regulations to be a State agency;7
trust account means —8
(a) a construction trust account; or9
(b) a retention money trust account;10
trust contract has the meaning given in section 76A;11
12
6. Section 14 amended13
After section 14(2) insert:14
15
(3) Subsection (2) does not apply to the following —16
(a) an express provision in a construction contract17
if —18
(i) a principal or a head contractor, who is19
a State agency, is a party to the contract;20
and21
(ii) the provision requires a head contractor22
or subcontractor to pay an amount23
owing in connection with the contract24
on the same day that the amount is paid25
to the head contractor or subcontractor;26
(b) any other provision of the contract or another27
construction contract that facilitates or gives28
effect to the provision referred to in29
paragraph (a)(ii).30
31
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Part 2
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7. Part 3 Division 1A inserted1
After Part 3 Division 1 insert:2
3
Division 1A — Payment withholding4
27A. Terms used5
In this Division —6
claim means either or both of the following —7
(a) a payment claim;8
(b) a claim, made under a construction contract, for9
the payment of an entitlement under the10
construction contract;11
claim statement has the meaning given in12
section 27C(1).13
27B. Application of Division14
(1) In this section —15
relevant construction contract means a construction16
contract to which a principal and head contractor are17
parties, but only if —18
(a) the head contractor is not a State agency or19
GTE; and20
(b) the principal of the contract is a State agency or21
GTE; and22
(c) if the principal of the contract is a GTE — at23
the time the contract is first entered into with24
the head contractor, the contract expressly25
provides that this Division applies to the26
contract;27
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relevant subcontract means a construction contract to1
which a head contractor and a subcontractor are parties,2
but only if —3
(a) the head contractor is a State agency or GTE;4
and5
(b) the subcontractor is not a State agency or GTE;6
and7
(c) at the time the contract is first entered into with8
the subcontractor, the contract expressly9
provides that this Division applies to the10
contract.11
(2) This Division applies to and in relation to —12
(a) a relevant construction contract; and13
(b) a relevant subcontract as if —14
(i) a reference to a head contractor is a15
reference to the subcontractor who is a16
party to the relevant subcontract; and17
(ii) a reference to a principal is a reference18
to the head contractor who is a party to19
the relevant subcontract.20
27C. Head contractor must give statement to principal21
(1) A head contractor of a contract who makes a claim in22
relation to the contract must give the principal of the23
contract a written statement (a claim statement), in the24
approved form, in relation to the claim.25
(2) The claim statement must include the following26
information —27
(a) whether or not the head contractor has paid the28
full amount claimed by each subcontractor29
engaged by the head contractor in connection30
with the contract;31
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(b) if the head contractor has not paid the full1
amount claimed by a subcontractor — the2
following information in relation to the3
subcontractor —4
(i) the subcontractor’s name;5
(ii) the amount that has not been paid to the6
subcontractor;7
(iii) details of the unpaid claim made by the8
subcontractor;9
(iv) the reasons the full amount has not been10
paid;11
(c) any other information reasonably required by12
the principal of the contract.13
(3) The information set out in subsection (2)(b) is not14
required to be included in a claim statement if —15
(a) the head contractor has entered a written16
agreement with the subcontractor to pay less17
than the full amount claimed and the agreed18
amount has been paid; or19
(b) the full amount claimed by the subcontractor20
will be paid out of the amount claimed in the21
claim for which the statement is prepared.22
(4) The head contractor must give the claim statement to23
the principal of the contract —24
(a) on the date specified for that purpose in the25
contract; or26
(b) if no date is specified for that purpose in the27
contract —28
(i) if the statement is for a payment29
claim — no later than 5 business days30
before the due date for payment under31
section 20; or32
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(ii) otherwise — no later than 20 business1
days after the claim is made.2
(5) The principal of the contract may, after receiving the3
claim statement, request any further information4
reasonably required for the principal to assess whether5
to withhold an amount from the head contractor under6
section 27D.7
(6) A claim made by the head contractor to the principal of8
a contract is not invalid only because a claim statement9
is not given to the principal.10
27D. Principal may withhold payments11
(1) The principal of a contract may, in either or both of the12
following circumstances, withhold an amount, or part13
of an amount, forming part of a claim made by a head14
contractor —15
(a) if a claim statement or further information is16
not given to the principal in relation to the17
claim under section 27C;18
(b) if, after receiving a claim statement in relation19
to the claim, the principal reasonably20
believes —21
(i) the statement or further information22
requested by the principal is false or23
misleading in a material particular; or24
(ii) the statement does not comply with this25
Division; or26
(iii) the head contractor who provided the27
statement has not complied with Part 4;28
or29
(iv) that if the amount is paid, the head30
contractor who provided the statement31
will not comply with Part 4.32
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(2) The principal of the contract must, as soon as1
reasonably practicable, give the head contractor written2
notice of the withholding.3
(3) The notice must include the following information —4
(a) details of the claim for the amount being5
withheld;6
(b) the amount being withheld;7
(c) the reason for withholding the amount.8
(4) Part 2 Division 2 and Part 3 Divisions 1 and 2 do not9
apply to, or in relation to, an amount while it is10
withheld.11
(5) A head contractor must not, on the basis of the12
withholding —13
(a) suspend work or supply under section 62; or14
(b) exercise, under section 64, a lien in relation to15
any unpaid amount over any unfixed plant or16
materials under the contract; or17
(c) take any action arising from, or in connection18
with, a failure to receive the amount.19
27E. Right to withhold prevails20
The principal of a construction contract to which this21
Division applies may withhold, and continue to22
withhold, an amount under section 27D in relation to a23
claim —24
(a) despite anything to the contrary in the25
construction contract or any other contract or26
agreement; and27
(b) whether the claim is made —28
(i) under this Act or the contract (or both);29
or30
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(ii) before or after notice of the withholding1
is given under section 27D;2
and3
(c) whether or not another claim is made in relation4
to the same amount.5
27F. Adjudication application taken to be withdrawn if6
progress payment withheld7
(1) This section applies if —8
(a) a progress payment, or part of a progress9
payment, is withheld under section 27D; and10
(b) the claimant has, before the withholding,11
applied for adjudication of the payment claim12
for the progress payment on a ground referred13
to in section 28(1); and14
(c) the application has not been finally determined.15
(2) The adjudication application is taken to be withdrawn16
under section 31.17
(3) The claimant remains liable for the fees and expenses18
of the adjudicator, if any, incurred or paid by the19
claimant before the withdrawal of the adjudication20
application under subsection (2).21
(4) The claimant is not entitled to a refund of the22
application fee, if any, paid to an authorised23
nominating authority for the application.24
(5) Nothing in this section prevents a person from making25
a new adjudication application in relation to the same26
payment claim after the progress payment ceases to be27
withheld under section 27D.28
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27G. Payment of amount withheld1
(1) If the principal of a contract is satisfied that the2
circumstances set out in section 27D(1) no longer3
apply in relation to an amount withheld, the principal4
must, as soon as reasonably practicable, pay the5
amount withheld to the head contractor.6
(2) The principal of the contract must give the head7
contractor written notice of —8
(a) the principal’s intention to pay the amount9
withheld; and10
(b) the date on which the amount will be paid.11
12
8. Section 30 amended13
(1) In section 30(2) delete “respondent within 1 business day after14
the application is made.” and insert:15
16
respondent.17
18
(2) After section 30(2) insert:19
20
(2A) An adjudication application is not invalid merely21
because subsection (2) is not complied with.22
23
9. Section 34 amended24
(1) In section 34(4) delete “claimant within 1 business day after the25
response is given to the adjudicator.” and insert:26
27
claimant.28
29
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(2) After section 34(4) insert:1
2
(5) An adjudication response is not invalid merely because3
subsection (4) is not complied with.4
5
10. Section 42 amended6
(1) In section 42(3) delete “party within 1 business day after the7
application is made.” and insert:8
9
party.10
11
(2) After section 42(3) insert:12
13
(3A) An adjudication review application is not invalid14
merely because subsection (3) is not complied with.15
16
11. Section 45 amended17
(1) In section 45(4) delete “review within 1 business day after the18
response is given to the review adjudicator.” and insert:19
20
review.21
22
(2) After section 45(4) insert:23
24
(5) An adjudication review response is not invalid merely25
because subsection (4) is not complied with.26
27
Section retrieval-0001 - Building and Construction Industry (Security of Payment) Amendment Bill 2026 - Document excerpt 1 | Zoe