South Australia
Building and Construction Industry Security of Payment (Authorised Nominating Authorities) Amendment Bill 2016
A Bill For
An Act to amend the Building and Construction Industry Security of Payment Act 2009.

Contents
Part 1—Preliminary
1	Short title
2	Commencement
3	Amendment provisions
Part 2—Amendment of Building and Construction Industry Security of Payment Act 2009
4	Amendment of section 4—Interpretation
5	Amendment of section 17—Adjudication applications
6	Substitution of section 18
18	Pool of adjudicators
18A	Adjudicator Review Panel
18B	Panel may recommend removal of adjudicators
7	Amendment of section 19—Selection and appointment of adjudicator
8	Amendment of section 24—Consequences of not paying claimant adjudicated amount
9	Amendment of section 26—Claimant may make new application in certain circumstances
10	Amendment of section 27—Claimant may discontinue adjudication
11	Repeal of section 29
12	Amendment of section 31—Protection from liability for adjudicators and Small Business Commissioner
Schedule 1—Transitional provisions
1	Withdrawal of authorisations

The Parliament of South Australia enacts as follows:
Part 1—Preliminary
1—Short title
This Act may be cited as the Building and Construction Industry Security of Payment (Authorised Nominating Authorities) Amendment Act 2016.
2—Commencement
This Act will come into operation 28 days after the day on which it is assented to by the Governor.
3—Amendment provisions
In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of Building and Construction Industry Security of Payment Act 2009
4—Amendment of section 4—Interpretation
	(1)	Section 4, definition of adjudication certificate—delete "an authorised nominating authority" and substitute:
the Small Business Commissioner
	(2)	Section 4, definition of adjudication fees—delete "an authorised nominating authority" and substitute:
the Small Business Commissioner
	(3)	Section 4—after the definition of adjudicator insert:
Adjudicator Review Panel or Panel—see section 18A;
	(4)	Section 4, definition of authorised nominating authority—delete the definition
	(5)	Section 4—after the definition of scheduled amount insert:
Small Business Commissioner means the Commissioner under the Small Business Commissioner Act 2011.
5—Amendment of section 17—Adjudication applications
	(1)	Section 17(3)(b)—delete "an authorised nominating authority chosen by the claimant" and substitute:
the Small Business Commissioner
	(2)	Section 17(3)(g)—delete "authorised nominating authority" and substitute:
Small Business Commissioner
	(3)	Section 17(6)—delete subsection (6) and substitute:
	(6)	The Small Business Commissioner must refer an application to an adjudicator as soon as practicable.
Note—
See section 19.
6—Substitution of section 18
Section 18—delete the section and substitute:
18—Pool of adjudicators
	(1)	The Small Business Commissioner must establish a pool of adjudicators for the purposes of this Act consisting of such number of eligible persons as the Small Business Commissioner thinks fit.
	(2)	A person is eligible to be an adjudicator in relation to a construction contract—
	(a)	if the person is a natural person; and
	(b)	if the person has the qualifications, expertise and experience prescribed by the regulations for the purposes of this section.
	(3)	The Small Business Commissioner may remove an adjudicator from the pool of adjudicators for any reason he or she thinks fit.
	(4)	However, a person is not eligible to be an adjudicator in relation to a particular construction contract—
	(a)	if the person is a party to the contract; or
	(b)	in such circumstances as may be prescribed by regulation for the purposes of this section.
18A—Adjudicator Review Panel
	(1)	The Adjudicator Review Panel (the Panel) is established.
	(2)	The Panel consists of 5 persons appointed by the Small Business Commissioner, of whom—
	(a)	1 must be a person able to represent the interests of contractors in respect of construction contracts; and
	(b)	1 must be a person able to represent the interests of sub‑contractors in respect of construction contracts.
	(3)	Subject to this section, a member of the Panel will hold office on conditions determined by the Small Business Commissioner for a term, not exceeding 3 years, specified in the instrument of appointment and is, at the expiration of a term of office, eligible for reappointment.
	(4)	The Small Business Commissioner may remove a member of the Panel from office—
	(a)	for breach of, or non‑compliance with, a condition of appointment; or
	(b)	for mental or physical incapacity to carry out duties of office satisfactorily; or
	(c)	for neglect of duty; or
	(d)	for dishonourable conduct.
	(5)	The office of a member of the Panel becomes vacant if the member—
	(a)	dies; or
	(b)	completes a term of office and is not reappointed; or
	(c)	resigns by written notice addressed to the Small Business Commissioner; or
	(d)	is found guilty of a prescribed offence; or
	(e)	is removed from office under subsection (4).
	(6)	The functions of the Panel are—
	(a)	to oversee the pool of adjudicators appointed under section 18 for the purpose of ensuring the pool remains appropriate for the purposes of this Act; and
	(b)	to inquire into the suitability of individual persons to be, or to continue to be, adjudicators for the purposes of this Act; and
	(c)	to make recommendations and give advice to the Small Business Commissioner in relation to adjudication under this Act; and
	(d)	to perform such other functions as may conferred on the Panel by the Small Business Commissioner.
	(7)	A quorum of the Panel consists of 3 members.
	(8)	A decision carried by a majority of the votes cast by members of the Panel at a meeting is a decision of the Panel.
	(9)	A member of the Panel is entitled to fees, allowances and expenses approved by the Minister.
	(10)	Subject to this Act, the Panel may determine its own procedures.
18B—Panel may recommend removal of adjudicators
	(1)	The Adjudicator Review Panel may recommend to the Small Business Commissioner that a specified person be removed from the pool of adjudicators established under section 18.
	(2)	A recommendation—
	(a)	must be in writing; and
	(b)	may only be made if the Panel is satisfied that it is not appropriate for the specified person to be, or to continue to be, an adjudicator for the purposes of this Act; and
	(c)	must set out the reasons for the recommendation.
	(3)	The Panel must ensure that a copy of the reasons is provided to the person to whom the recommendation relates.
	(4)	The Small Business Commissioner must, unless he or she is of the opinion that it is not appropriate to do so, remove a person from the pool of adjudicators established under section 18 if the Panel so recommends.
	(5)	A person who is removed from the pool of adjudicators established under section 18 on the recommendation of the Panel may apply to the Administrative and Disciplinary Division of the District Court for a review of the Panel's recommendation and the Small Business Commissioner's decision to take that action.
7—Amendment of section 19—Selection and appointment of adjudicator
	(1)	Section 19—before subsection (1) insert:
	(a1)	In determining to which adjudicator an adjudication application is to be referred, the Small Business Commissioner is to select an adjudicator randomly from the pool of adjudicators established under section 18 (disregarding any ineligible adjudicators).
	(2)	Section 19(1)—delete "an authorised nominating authority" and substitute:
the Small Business Commissioner
8—Amendment of section 24—Consequences of not paying claimant adjudicated amount
	(1)	Section 24(1)(a)—delete "authorised nominating authority to whom the adjudication application was made" and substitute:
Small Business Commissioner
	(2)	Section 24(4)(a)—delete "authorised nominating authority" and substitute:
Small Business Commissioner
	(3)	Section 24(5)(a)—delete "authorised nominating authority" and substitute:
Small Business Commissioner
9—Amendment of section 26—Claimant may make new application in certain circumstances
Section 26(2)(a)—delete "authorised nominating authority to whom the application was made" and substitute:
Small Business Commissioner
10—Amendment of section 27—Claimant may discontinue adjudication
Section 27(2)(a)—delete "authorised nominating authority to whom the application was made" and substitute:
Small Business Commissioner
11—Repeal of section 29
Section 29—delete the section
12—Amendment of section 31—Protection from liability for adjudicators and Small Business Commissioner
	(1)	Section 31(2)—delete "an authorised nominating authority" and substitute:
the Small Business Commissioner
	(2)	Section 31(2)—delete "by the authorised nominating authority"
	(3)	Section 31(2)(a) and (b)—delete "nominating authority's" and substitute in each case:
Commissioner's
	(4)	Section 31—after subsection (2) insert:
	(3)	No action lies against the Adjudicator Review Panel with respect to anything done or omitted to be done by the Panel in good faith—
	(a)	in exercising the Panel’s functions under this Act; or
	(b)	in the reasonable belief that the thing was done or omitted to be done in the exercise of the Panel’s functions under this Act.

Schedule 1—Transitional provisions
1—Withdrawal of authorisations
	(1)	The authorisation of a person who was, immediately before the commencement of this clause, authorised under section 29 of the Building and Construction Industry Security of Payment Act 2009 (as in force before the commencement of this clause) to nominate adjudicators for the purposes of that Act is, by force of this clause, withdrawn.
	(2)	Nothing in this clause affects the right of person contemplated by subclause (1) to recover an amount payable for services provided under the Building and Construction Industry Security of Payment Act 2009 (as in force before the commencement of this clause).