Takeaway
Most provisions in the Building Industry Fairness (Security of Payment) and Other Legislation Amendment Act 2024 (Qld) (BIFOLA) came into force on 1 July 2024, except those which related to GST on retention amount deposits. This affects various laws in Queensland, aiming to support trust account implementation, streamline regulations, improve information sharing between authorities, and to incorporate recommendations outlined in the QBCC Government Review.
On 6 June 2024, Queensland Parliament passed another amending act which contained important changes to the Building Industry Fairness (Security of Payment) Act 2017 (Qld) in response to the recent Supreme Court case of Iris Broadbeach Business Pty Ltd v Descon Group Australia Pty Ltd [2023] QSC 290. Notably, under the new section 79(3), claimants must provide a copy of the adjudication application and accompanying submissions within 4 business days. Compliance prior to the changes is still permitted through a registry summary, ensuring ongoing adjudication jurisdiction and validity.
Amendments to Project Trust Accounts and the Security of Payment Act
As of 1 July 2024, various provisions for the Building Industry Fairness (Security of Payment) Act 2017 (Qld) came into effect.
Importantly, a project trust subcontract is now defined. This provides important clarity and assists the industry in identifying which contracts are subject to the Project Trust Account (PTA) framework. It also outlines that a contracted party for a project trust contract is both the trustee and beneficiary of a PTA, and as such, a project trust subcontractor should be paid out of the PTA. The BIFOLA amendments also provide clarity as to the eligibility of a contract for a PTA, stating that a contract can become eligible for a PTA when it is amended, and the original contract price is increased by 30% or more.
The BIFOLA also amended rules for keeping records. As to record keeping for the trust leger, it must be recorded when entitlement arises, within 3 business days. Unlike previously where the trust ledger had to be recorded when liable to be paid arose, within 5 business days. When considering record keeping for reconciliations, comparison is required to 2 different records, within 5 business days. Further, it is no longer required to keep a record of all deposits and withdrawals.
These new changes make mandatory training for RTA trustees or trust account administrators no longer required. Additionally, the RTA annual audit requirement for an external auditor has been paused. Contrary to what was allowed previously, trust funds can no longer be included as an asset under MFR reporting.
Amendments to the QBCC
The BIFOLA also amended the Queensland Building and Construction Commission Act 1991 (Qld). Most significantly, it amended the required period for an internal review application to be completed by an internal review from 28 days to 28 business days. This substantially increases the amount of time an internal reviewer will have to make a new decision under the act. In addition to this, when an internal review application is made, it must now be made using an approved form.
Next, the BIFOLA decreased the number of members that could sit on the Queensland Building and Construction Board, required the commission to publish a public register of members’ interests on its website and made modifications to the confidentiality of information provision. Lastly, various amendments were also made to provisions about licenses.
Other Changes
Part 2 of the BIFOLA amended the Architects Act 2002 (Qld), mostly in relation to false or misleading documents. Part 6 made similar amendments to the Professional Engineers Act 2002 (Qld). Part 3, which amended the Building Act 1975 (Qld), related mainly to changes in requirements for pool safety inspectors. Lastly, Part 5 of the BIFOLA amended the Plumbing and Drainage Act 2018 (Qld).
Amendments to the Adjudication Process
On 6 June 2024, the Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Act 2024 (Qld) was passed by the Queensland Parliament. Relevantly, this contained significant amendments to the Building Industry Fairness (Security of Payment) Act 2017 (Qld) in response to the recent Supreme Court case of Iris Broadbeach Business Pty Ltd v Descon Group Australia Pty Ltd [2023] QSC 290.
Under the new section 79(3), a claimant must provide a copy of the adjudication application and the accompanying submissions within 4 business days after making the adjudication application.
It was clarified that claimants are taken to have complied with the previous section 79(3) if they provided a registry summary of the adjudication application before the commencement of the Amending Act. Therefore, any such adjudication decisions, and associated compliance or enforcement action, are still valid and the adjudicator would still have jurisdiction to decide. Further, any court decision holding an adjudication application as void because of non-compliance with the former section 79(3) only, by failing to give a copy of the adjudication application and giving the registry summary, is of no effect. Similarly, where an adjudicator has held that they did not have jurisdiction because the claimant did not give a copy of the adjudication application to the respondent as required under the former section 79(3), the original decision is void and of no effect, and the adjudication application must be redecided. Lastly, for adjudications that are not yet complete, any failure to comply with the former section 79(3) does not deprive the adjudicator of jurisdiction.
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