UPDATE Friday 10 November 2017: Today, the Building Industry Fairness (Security of Payment) Bill 2017 received Royal Assent. However, please note that the commencement date for the Act has still not been proclaimed, which means that the Act is not currently in force.
ORIGINAL ARTICLE Friday 3 November 2017:
Just one week ago we celebrated the passing of the Building Industry Fairness (Security of Payment) Bill 2017 (the ‘BIF Bill’). But the Bill, although passed by the Queensland Parliament, is not in force and working until it receives Royal Assent and the commencement date is proclaimed.[1]
The Office of the Queensland Parliamentary Counsel confirmed with us yesterday that the BIF Bill did not received Royal Assent.[2]
Why is this important?
I know what you are thinking – surely that’s not a problem, the Governor can just give Royal Assent later and the Act will start working from then.
The problem is however:
the BIF Bill was drafted so that it would only start working at a commencement date proclaimed by the Governor[3] and not just on Royal Assent;
the Governor cannot proclaim a commencement date without the Governor being formally advised of the commencement date by the Executive Council of the Government; and
as you may be aware, Parliament was dissolved on Sunday, 29 October 2017, when the election was called. From that point onward, there is merely a caretaker Government and the Executive Council does not “ordinarily” meet, let alone make decisions.
The BIF Bill is now effectively in “no-man’s land” waiting for the new Government to be elected to determine a commencement date and to advise the Governor.
If the new Government does not advise the Governor of a commencement date, the Bill will automatically commence law 12 months after it receives Royal Assent.[4]
What does this mean for me as a subcontractor or trade contractor?
This means that the current law is unchanged and will remain unchanged until after the new Government is elected. At which point, it will be for that new Government to decide and advise the Governor of a commencement date for the Bill.[5]
This means that you still need to make sure that your payment claims fulfil the following criteria:[6]
Identify the construction work;
State the claimed amount; and
State “This is a payment claim in accordance with the Building and Construction Industry Payments Act 2004.”[7]
This means that if you are not paid by the due date and you have not received a payment schedule you will still need to send a section 20A notice within 20 business days of the due date. If you do not send a section 20A notice within the 20 business days you lose your ability to enforce your payment claim under the Act. A section 20A notice must:[8]
State that the payer may serve a payment schedule on you within 5 business days after receiving the notice; and
State “This notice is made in accordance with the Building and Construction Industry Payments Act 2004.”[9]
This means that you still only have 10 business days from receiving a payment schedule to apply for adjudication.[10]
This also means that unless stated in your contract, you do not have a right to send a payment claim if your contract is terminated before the reference date.[11]
Contact Us
Do you want to know more about security of payment? Or are you having trouble getting paid?
The law can be complicated, so let our experienced construction law practice give you peace of mind. We can work with your team at any stage of your project, whether pre-contract or once a dispute occurs. Call now on 07 3128 0120 or email us on subcontractors@arbuildinglaw.com.au.
End Notes
[1] Clause 2, Building Industry Fairness (Security of Payment) Bill 2017.
[2] Please note we are currently unaware if the Clerk of the Parliament has presented the Bill and formally advised the Governor that the Bill had been approved by Parliament.
[3] Apart the following parts of the Bill which are drafted to amend the Bill at a future date: chapter 9, part 1, division 1, chapter 9, parts 2 and 3, sections 250 to 256, 260 to 265, 266(2) and (3), 267(2) and (3), 270 to 285, 288 to 297, 299 to 303 and 305, section 307(2), other than to the extent it inserts new definition minimum financial requirements.
[4] The Acts Interpretation Act 1954, section 15DA, provides for the automatic commencement of certain Acts 1 year after they are assented to.
[5] If any.
[6] Section 17(2) Building and Construction Industry Payments Act 2004.
[7] Or words to that effect.
[8] Section 20A Building and Construction Industry Payments Act 2004.
[9] Or words to that effect.
[10] Section 21(3) Building and Construction Industry Payments Act 2004.
[11] That relates to that payment claim, see section 12 Building and Construction Industry Payments Act 2004.
