Part 7Miscellaneous

Part 7—Miscellaneous 42—No exclusion etc of rights, conditions or warranties Any purported exclusion, limitation, modification or waiver of a right conferred, or contractual condition or warranty implied, by this Act is void. 43—Delegations (1) The Commissioner may delegate any of the Commissioner's functions or powers under this Act— (a) to a person employed in the Public Service; or (b) to the person for the time being holding a specified position in the Public Service; or (c) to any other person under an agreement under this Act between the Commissioner and an organisation representing the interests of persons affected by this Act. (2) The Minister may delegate any of the Minister's functions or powers under this Act (except the power to direct the Commissioner). (3) A delegation under this section— (a) must be in writing; and (b) may be conditional or unconditional; and (c) is revocable at will; and (d) does not prevent the delegator from acting in any matter. 44—Agreement with professional organisation (1) The Commissioner may, with the approval of the Minister, make an agreement with an organisation representing the interests of persons affected by this Act under which the organisation undertakes a specified role in the administration or enforcement of this Act. (2) The agreement— (a) must be in writing and executed by the Commissioner and the organisation; and (b) may contain delegations by the Commissioner of functions or powers under this Act or the Fair Trading Act 1987; and (c) must set out any conditions governing the performance or exercise of functions or powers conferred on the organisation; and (d) must make provision for the variation and termination of the agreement by the Commissioner with the approval of the Minister or the organisation. (3) The Commissioner may not delegate any of the following for the purposes of the agreement: (a) functions or powers under Part 2 or 3; (b) power to request the Commissioner of Police to investigate and report on matters under this Part; (c) power to commence a prosecution for an offence against this Act. (4) A delegation by the Commissioner for the purposes of the agreement— (a) has effect subject to the conditions specified in the agreement; and (b) may be varied or revoked by the Commissioner in accordance with the terms of the agreement; and (c) does not prevent the Commissioner from acting in any matter. (5) The Minister must, within six sitting days after the making of the agreement, cause a copy of the agreement to be laid before both Houses of Parliament. 45—Exemptions (1) The Minister may, on application by a person, exempt the person from compliance with a specified provision of this Act. (2) An exemption under this section is subject to the conditions (if any) imposed by the Minister. (3) The Minister may, at his or her discretion, vary or revoke an exemption under this section. (4) The grant or a variation or revocation of an exemption under this section must be notified in the Gazette. 46—Registers (1) The Commissioner must keep— (a) a register of persons licensed as building work contractors; and (b) a register of persons registered as building work supervisors. (2) The Commissioner must record on the register— (a) disciplinary action taken against a person under this Act; and (b) a note of any assurance accepted by the Commissioner under the Fair Trading Act 1987 in relation to a licensed building work contractor. (2a) If any of the following events occur in relation to a person who is licensed as a building work contractor, or is a director of a body corporate that is licensed as a building work contractor, the Commissioner may record a note of the event on the register: (a) the person is suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; (b) the person becomes an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth; (c) a body corporate is wound up for the benefit of creditors and the person was a director of the body corporate— (i) when the body corporate was being so wound up; or (ii) within the period of 12 months preceding the commencement of the winding up; (d) the person, being a body corporate, is being wound up or is under official management or in receivership. (3) A person may inspect a register on payment of the fee fixed by regulation. 47—Commissioner and proceedings before Tribunal (1) The Commissioner is entitled to be joined as a party to any proceedings of the Tribunal under Part 2, 3, 3A, 3B or 4. (2) The Commissioner may appear personally in any such proceedings or may be represented at the proceedings by counsel or a person employed in the Public Service. (3) Subsection (1) applies in addition to section 53 of the South Australian Civil and Administrative Tribunal Act 2013. 47A—Licensed building work contractor must not contract with unlicensed person (1) A licensed building work contractor must not contract with a person to carry out building work on behalf of the licensed building work contractor unless the person holds a building work contractors licence of the appropriate class under this Act. (a) for an offence committed by a natural person—$100 000; (b) for an offence committed by a body corporate—$500 000. (2) However, subsection (1) does not apply— (a) to a building work contractor who is exempt from complying with section 6 in respect of the relevant building work; or (b) in circumstances prescribed by the regulations. 47B—Building work contractor not to use another person's licence number etc (1) A building work contractor must not, in relation to building work performed or to be performed by the building work contractor, use or refer to a licence number that is not the licence number assigned to their licence by the Commissioner in a manner that is intended, or is likely, to mislead or deceive another person into believing that the building work may lawfully be performed under the authority of that licence. (2) A building work contractor must not, for the purposes of obtaining a policy of insurance contemplated by Part 5 Division 3, use or refer to a licence number that is not the licence number assigned to their licence by the Commissioner. (3) A building work contractor must not, in relation to building work performed or to be performed by the building work contractor, directly or indirectly represent that the building work will be performed under the authority of a licence other than a licence held by the building work contractor. (4) A person who is not a building work contractor must not, in relation to building work performed or to be performed by the person, use or refer to a licence number in a manner that is intended, or is likely, to mislead or deceive another person into believing that the building work may lawfully be performed under the authority of that licence. 47C—Offence to hold out as licensed etc (1) A person who is not licensed under this Act must not— (a) hold themselves out as being so licensed; or (2) A person who holds a building work contractors licence with conditions must not— (a) hold themselves out as having a building work contractors licence that is not subject to conditions; or (3) A person must not hold out another as being licensed under this Act unless that other person is, in fact, so licensed. 47D—Offence to hold out as registered etc (1) A person who is not registered under this Act must not— (a) hold themselves out as being so registered; or (2) A person who holds a building work supervisors registration with conditions must not— (a) hold themselves out as having a building work supervisors registration that is not subject to conditions; or (3) A person must not hold out another as being registered under this Act unless that other person is, in fact, so registered. 48—False or misleading information A person must not make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in any information provided, or record kept, under this Act. (a) if the person made the statement knowing that it was false or misleading— (i) in the case of an offence committed by a natural person—$50 000; (ii) in the case of an offence committed by a body corporate—$500 000; (b) in any other case— (i) in the case of an offence committed by a natural person—$25 000; (ii) in the case of an offence committed by a body corporate—$250 000. 49—Name in which building work contractor may carry on business A licensed building work contractor must not carry on business as a building work contractor except in the name in which the contractor is licensed or in a business name registered by the contractor under the Business Names Registration Act 2011 of the Commonwealth of which the Commissioner has been given prior notice in writing. 50—Publication of advertisements (1) A licensed building work contractor must not publish, or cause to be published, an advertisement relating to the business carried on under the authority of the licence unless the advertisement specifies— (a) the contractor's name as it appears in the licence or any registered business name in which the contractor carries on business as a building work contractor and of which the Commissioner has been given prior notice in writing; and (b) the contractor's licence number and, if the contractor carries on business as a building work contractor in partnership, the licence number of each partner. Maximum penalty: $25 000. (2) Subsection (1) does not apply in relation to an advertisement offering or seeking applications for employment or directed to other building work contractors. 51—Licensed building work contractor to have sign showing name etc on each building site (1) A licensed building work contractor must install or erect in a prominent position on the site of any building work performed by the contractor or on the outside of the place where the building work is being performed a sign showing in clearly legible characters— (a) the contractor's name as it appears in the licence or any registered business name in which the contractor carries on business as a building work contractor and of which the Commissioner has been given prior notice in writing; and (b) the contractor's licence number and, where the contractor carries on business as a building work contractor in partnership, the licence number of each partner. Maximum penalty: $25 000. (2) If a licensed building work contractor is performing building work on a site for some other licensed building work contractor performing work on that site, it is sufficient compliance with subsection (1) if the provisions of that subsection are complied with only by that other contractor. 52—Statutory declaration If a person is required to provide information to the Commissioner, the Commissioner may require the information to be verified by statutory declaration and, in that event, the person will not be taken to have provided the information as required unless it has been verified in accordance with the requirements of the Commissioner. 53—Investigations The Commissioner of Police must, at the request of the Commissioner, investigate and report on any matter relevant to— (a) the determination of an application under this Act; or (b) a matter that might constitute proper cause for disciplinary action under this Act. 54—General defence It is a defence to a charge of an offence against this Act if the defendant proves that the offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence. 55—Liability for act or default of officer, employee or agent For the purposes of this Act, an act or default of an officer, employee or agent of a person carrying on a business will be taken to be an act or default of that person unless it is proved that the officer, employee or agent acted outside the scope of his or her actual, usual and ostensible authority. 57—Continuing offence (1) A person convicted of an offence against a provision of this Act in respect of a continuing act or omission— (a) is liable, in addition to the penalty otherwise applicable to the offence, to a penalty for each day during which the act or omission continued of not more than one-tenth of the maximum penalty prescribed for that offence; and (b) is, if the act or omission continues after the conviction, guilty of a further offence against the provision and liable, in addition to the penalty otherwise applicable to the further offence, to a penalty for each day during which the act or omission continued after the conviction of not more than one-tenth of the maximum penalty prescribed for the offence. (2) If an offence consists of an omission to do something that is required to be done, the omission will be taken to continue for as long as the thing required to be done remains undone after the end of the period for compliance with the requirement. 58—Prosecutions (1) Proceedings for an offence against this Act must be commenced within 2 years of the date on which the offence is alleged to have been committed or, with the authorisation of the Minister, at a later time within 5 years of that date. (1a) An indictable offence against this Act must be prosecuted, and dealt with by the Magistrates Court, as a summary offence. (2) A prosecution for an offence against this Act cannot be commenced except by— (a) the Commissioner; or (b) an authorised officer under the Fair Trading Act 1987; or (c) a person who has the consent of the Minister to commence the prosecution. (3) In any proceedings, an apparently genuine document purporting to be a certificate of the Minister certifying authorisation of, or consent to, a prosecution for an offence against this Act will be accepted, in the absence of proof to the contrary, as proof of the authorisation or consent. 59—Evidence (1) In proceedings in respect of an offence against this Act, if it is proved that a person performed building work for another for fee or reward, the person is, unless the contrary is proved, to be taken to have been carrying on business as a building work contractor. (2) In proceedings in respect of an offence against this Act, if it is proved that a person has, during a period of five years, sold or let (whether by lease, licence or other agreement) two or more buildings each of which has been built or improved as a result of building work performed by that person during that period, the person is, unless the contrary is proved, to be taken to have been carrying on business as a building work contractor. (3) In any proceedings, an apparently genuine document purporting to be a certificate of the Commissioner certifying— (a) that a person was or was not licensed as a building work contractor on a specified date; or (b) that a person was or was not registered as a building work supervisor on a specified date; or (c) that a person was, or that no person was, approved as a building work supervisor in relation to a specified building work contractor's business on a specified date, will be accepted, in the absence of proof to the contrary, as proof of the matters so certified. 60—Service of documents (1) Subject to this Act, a notice or document required or authorised by this Act to be given to or served on a person may— (a) be served on the person personally; or (b) be posted in an envelope addressed to the person— (i) at the person's last known address; or (ii) if the person is a licensed building work contractor or registered building work supervisor—at the person's address for service; or (c) if the person is a licensed building work contractor—be left for the person at the address for service with someone apparently over the age of 16 years; or (d) be transmitted by facsimile transmission to a facsimile number provided by the person (in which case the notice or document will be taken to have been given or served at the time of transmission). (2) The address for service of a licensed building work contractor or registered building work supervisor is the address of which the Commissioner has been last notified in writing by the contractor or supervisor as the contractor's or supervisor's address for service. 61—Annual report (1) The Commissioner must, on or before 31 October in each year, submit to the Minister a report on the administration of this Act during the period of 12 months ending on the preceding 30 June. (2) The Minister must, within six sitting days after receipt of the report, cause a copy of the report to be laid before each House of Parliament. 62—Regulations (1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act. (2) Without limiting the generality of subsection (1), the regulations may— (a) require licensed building work contractors or registered building work supervisors to comply with a code of conduct or practice; (b) fix fees to be paid in respect of any matter under this Act and provide for the recovery, refund, waiver or reduction of such fees; (c) require councils and other local government authorities to provide prescribed information to the Commissioner at prescribed intervals; (d) prescribe or prohibit any matter or thing relating to preliminary work contracts (as defined in Part 5); (e) exempt (conditionally or unconditionally) classes of persons or activities from the application of this Act or specified provisions of this Act; (f) impose a penalty (not exceeding a fine of $5 000) for contravention of, or non-compliance with, a regulation. (3) Regulations under this Act— (a) may be of general application or limited application; (b) may make different provision according to the matters or circumstances to which they are expressed to apply; (c) may provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Commissioner or the Minister. (4) Regulations under this Act made for the purposes of Part 5 or provisions of that Part may be expressed to apply in relation to periods before or after the commencement of that Part. (5) The regulations may operate by reference to a specified code as in force at a specified time or as in force from time to time. (6) If a code is referred to in the regulations— (a) a copy of the code must be kept available for inspection by members of the public, without charge and during normal office hours, at an office determined by the Minister; and (b) evidence of the contents of the code may be given in any legal proceedings by production of a document apparently certified by the Minister to be a true copy of the code.