ELIZABETHAE SECUNDAE REGINAE

Transcription

1 674 Qllm15f1T14 ANNO VICESIMO TERTIO ELIZABETHAE SECUNDAE REGINAE No. 71 of 1974 An Act to make provision for the establishment and management of trust accounts by contractors and matters connected therewith [ASSENTED TO 1ST NOVEMBER, 1974] BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- 1. Short title. This Act may be cited as the Contractors' Trust Accounts Act Commencement. This Act shall commence on a date appointed by Proclamation. 3. Interpretation. In this Act, save where a contrary intention appearsbank " means a bank carrying on business in the State under the authority of an Act of the State or of the Commonwealth;

2 Contractors' Trust Accounts Act 1974, No " contract " includes- (a) a contract or arrangement (whether oral or written and whether or not binding at law) for- (i) the construction, repair, extension, alteration, renovation or painting of a dwelling-house or other fixed improvement of any kind on land that is the curtilage of a dwellinghouse; (ii) the performance of work or the supply of materials for or in connexion with the construction, repair, extension, alteration, renovation or painting of a dwelling-house or other fixed improvement of any kind on land that is the curtilage of a dwelling-house; (b) a representation, promise or stipulation (whether oral or written and whether or not binding at law) made by one person to another that he or some other person on his behalf- (i) will construct, repair, extend, alter, renovate or paint a dwelling-house or other fixed improvement of any kind on land that is the curtilage of a dwelling-house; (ii) will perform work or supply materials for or in connexion with the construction, repair, extension, alteration, renovation or painting of a dwelling-house or other fixed improvement of any kind on land that is the curtilage f a dwelling-house; " contractor " includes- (a) the person by whom a contract or arrangement referred to in provision (a) of the definition "contract " is to be performed; (b) the person making a representation. promise or stipulation referred to in provision (b) of the definition " contract "; " inspector " means an inspector appointed under this Act; " Minister " means the Minister for Justice and Attorney-General or other Minister of the Crown for the time being charged with the administration of this Act and includes a Minister of the Crown who is temporarily performing the duties of the Minister; " money " includes an instrument for the payment of money in any case where the instrument may be paid into a bank; Under Secretary " means the holder for the time being of the office of Under Secretary Department of Justice. 4. Appointment of inspectors. The Governor in Council may from time to time appoint such inspectors as he considers necessary for the effectual administration of this Act. Inspectors shall be appointed and hold office under, subject to and in accordance with the Public Service Act Powers of inspectors. (I) An inspector at any time- (a) may enter and remain upon premises at which a contractor is carrying on his business; (b) may verbally or in writing require a contractor to produce for inspection, examination or audit by him- (i) all trust accounts established and kept by the contractor pursuant to this Act;

3 676 Contractors' Trust Accounts Act 1974, No. 71 (ii) all accounts, contracts, agreements, records and other documents in the possession, custody or control of the contractor that relate to any transaction made by or with the contractor or any such account, contract, agreement, record or other document specified by the inspector; (c) may verbally or in writing require a contractor to answer any question or to furnish any information that relates to any account, contract, agreement, record or other document (or any entry therein) referred to in subparagraph (b); (d) may require a person other than a contractor who has in his possession, custody or control any account, contract, agreement, record or other document relating to any transaction made by or with a contractor to produce to the inspector for inspection, examination or audit that account, contract, agreement, record or other document and in addition to supply to the satisfaction of the inspector information with respect thereto or to any entry therein; (e) may take notes or copies of or extracts from any account, contract, agreement, record or other document in the possession, -custody or control of any person relating to any transaction made by or with a contractor; (f) may seize and detain any account, contract, agreement, record or other document produced to him that he considers will afford evidence as to the commission of an offence against this Act that he suspects on reasonable grounds to have been committed; (g) shall upon request made to him by any person from whom any account, contract, agreement, record or other document has been seized, supply to that person within a reasonable time a copy of or extract from any account, contract, agreement, record or other document so seized; (h) may call to his aid- (i) another inspector in a case where he is obstructed or has reasonable grounds to believe that he will be obstructed in the exercise of his powers or the discharge of his functions and duties; (ii) a person who he thinks is competent to assist him in the exercise of his powers or the discharge of his functions and duties. (2) Any account, contract, agreement, record or other document seized under this Act may be detained by an inspector- (a) for such period as he considers necessary for the purposes of this Act; (b) where proceedings for an offence against this Act to which the account, contract, agreement, record or other document so seized in any manner relates have been or are to be instituted, until the final determination of those proceedings. (3) (a) Before an inspector enters any part of premises which part is being used exclusively as a dwelling-house he shall, save where he has the permission of the occupier of that part to his entry, obtain from a justice a warrant to enter.

4 Contractors ' Trust Accounts Act 1974, No (b) A justice who is satisfied upon the complaint of an inspector that there is reasonable cause to suspect- (i) that there is in any place any account. contract, agreement, record or other document relating to any transaction made by or with a contractor; (ii) that an offence against this Act has been committed, is being committed or is likely to be committed; and (iii) that any account, contract, agreement, record or other document referred to in subparagraph (i) will afford evidence as to the commission of an offence against this Act, may issue his warrant directed to the inspector to enter the place specified in the warrant for the purposes of exercising therein the powers conferred on an inspector under this Act. (c) A warrant shall be, for the period of one month from the date of its issue, sufficient authority for the inspector and all persons acting in aid of him- (i) to enter the place specified in the warrant; and (ii) to exercise therein the powers conferred on an inspector by this Act. (d) In this subsection' premises that are used as a dwelling-house do not include the curtilage of those premises. (4) For the purposes of gaining entry to any place an inspector may call to his aid such persons as he thinks necessary and those persons. while acting in aid of an inspector in the lawful exercise of his power of entry, shall have a like power of entry. 6. Offences with respect to inspectors. A person- (a) shall not assault, obstruct, threaten, abuse, insult or intimidate an inspector in the exercise of his powers or the discharge of his functions and duties under this Act or attempt so to do; (b) shall not fail to answer any question put to him for the purposes of this Act by an inspector or give a false or misleading answer to a question so put; (c) shall not fail to comply with a lawful requisition or order of an inspector; (d) shall not, when required by or under this Act to furnish information, fail to do so or furnish information that is false or misleading; (e) shall not fail, upon demand made, to produce to an inspector for inspection, examination, or audit any account, contract, agreement, record or other document authorized under this Act to be produced or seized; (f) shall not take or retake possession of any account, contract. agreement, record or other document seized and detained under this Act or attempt so to do; (g) shall not fail to allow an inspector to take notes or make a copy of or an extract from any account, contract, agreement, record or other document authorized under this Act to be produced or seized; (h) shall not prevent a person from being interrogated by an inspector or attempt so to do.

5 678 Contractors' Trust Accounts Act No Duty of inspector to report to Under Secretary. An inspector who exercises a power or discharges a function or duty conferred or imposed upon him by this Act shall, as soon as practicable after such exercise or discharge, report thereon in writing to the tinder Secretary. 8. Duties of contractor with respect to money received. (1) A contractor shall establish and keep in a bank or banks a trust account or trust accounts designated or evidenced as such into which he- (a) shall forthwith pay money (being the whole or part of the contract price for any contract) received by him after the date of commencement of this Act and before he has commenced to perform that contract; (b) shall within one month after the date of commencement of this Act pay so much of money (being the whole or part of the contract price for any contract) received by him prior to that date and before he had commenced to perform that contract, as has not been duly applied by him for a purpose specified in section 9. (2) A contractor- (a) shall not pay to a general trust account kept by him money other than money referred to in subsection (1); (b) shall not pay to a separate trust account kept by him money other than money received by him for or on behalf of the person on whose behalf or at whose direction the account was established. Nothing in this subsection prohibits payment into a contractor's general trust account of money received by him where part of that money is attributable to statutory charges or other outlays already incurred or disbursed. 9. Withdrawals by contractor from trust account. (1) A contractor shall not withdraw money from a trust account kept by him save for the purpose of- (a) making payment to a person other than himself for work done or materials supplied in connexion with the performance of a contract; (b) making progress payments to himself in connexion with the performance of a contract. (2) A contractor shall not withdraw money from a general trust account kept by him for the purpose of making a payment referred to in subsection (1) unless such withdrawal is made against moneys paid into that account for the purposes of the contract in connexion with which the payment is to be made. (3) A contractor shall not withdraw money from a trust account kept by him for the purpose of making a progress payment referred to in subsection (1) (b) unless- (a) in the case of a first such payment in connexion with the performance of a particular contract, he has commenced to perform that contract: (b) in the case of a second or subsequent such payment in connexion with the performarwe of a particular contract, he has made further progress in the performance of that contract since the making of the last preceding such payment;

6 Contractors' Trust Accounts Act 1974, No (c) in the case of any such payment, the payment is fair and reasonable having regard to- (i) the progress made in the performance of the contract in question; and (ii) the amount of the previous such payment or payments (if any) made in connexion with the contract in question. (4) All questions of fact material to the lawfulness of any progress payment made shall be determined by a court as if they were questions of law. 10. Disbursements from trust account. A contractor shall not draw against or cause any payment to be made from a trust account kept by him unless the drawing or payment is made by his cheque or a cheque drawn by a bank, crossed and marked on its face " not negotiable " and payable to order. 11. Duty of bank manager. (1) Notwithstanding any Act. law, rule or practice, the manager or other principal officer of a bank with which a contractor has deposited money whether to his own account or to the credit of a trust account shall, upon demand in writing by the Under Secretary or person authorized in that behalf by the Minister and given to him, permit the Under Secretary or person authorized to inspect any such account or any bank account, document or writing relating to such account and to make and take away copies thereof or extracts therefrom. (2) A manager or other principal officer of a bank who fails to comply with any provision of this section commits an offence against this Act, and is liable upon summary conviction to a penalty of $ Contractor to evidence state of trust account. (1) The Under Secretary may, by notice in writing given to a contractor, require the contractor to produce to him within the time limited in the notice all books, statements of account and writings that are in the contractor's possession or under his control and that evidence, in relation to a trust account kept by the contractor, the state of that account at the date of the notice or at any date (specified in the notice) within 12 months last preceding the date of the notice according as the notice directs. (2) A contractor to whom a notice is given under subsection (1) shall comply with the requisition therein contained. 13. Power of Minister to exempt. (1) The Minister may, by notification published in the Gazette, grant to a contractor or class of contractor exemption from the operation of all or any of the provisions of this Act. An exemption granted under this section shall be subject to such terms and conditions (if any) as the Minister determines, specified in the notification. (2) The Minister may by a like notification revoke or vary a notification made under subsection (I). (3) An exemption granted under this section or a revocation or variation thereof shall take effect on and from the date of publication in the Gazette of the notification with respect thereto.

7 680 Contractors ' Trust Accounts Act 1974, No. 71 (4) A contractor shall comply with every term and condition to which an exemption granted under this section or any variation thereof is subject 14. Offences. (1) A person who contravenes or fails to comply with a provision of this Act commits an offence against this Act and, save where otherwise provided by or under this Act, is liable- (a) upon conviction on indictment to a fine of $2 000 or imprisonment with hard labour for 3 years or if the offender is a corporation to a fine of $10 000; (b) upon summary conviction to a fine of SI 000 or imprisonment with hard labour for 12 months or if the offender is a corporation to a fine of $ (2) Where a body corporate commits an offence against this Act each of the following persons shall be deemed to have committed the offence and shall be liable to be proceeded against and punished accordingly:- (a) the managing director, manager or other governing officer by whatever name called and every member of the governing body thereof, by whatever name called; and (b) every person who in the State manages or acts or takes part in the management, administration or government of the business in the State of the body corporate. This subsection applies so as not to limit or affect in any way the liability of a body corporate to be proceeded against and punished for an offence against this Act committed by it. (3) (a) A charge of an offence against this Act, other than an offence defined in section 11, may be prosecuted upon indictment or by way of summary proceedings before a stipendiary magistrate sitting alone. (b) Proceedings before the stipendiary magistrate shall be proceedings with a view to the committal of the defendant for trial or sentence or with a view to summary conviction at the election of the prosecutor. (c) Where proceedings are taken with a view to summary conviction of the defendant and the stipendiary magistrate forms the opinion that the matter should not be determined summarily, he shall abstain from determining the matter summarily and shall instead deal with the proceedings as proceedings with a view to the committal of the defendant for trial or, as the case may be, sentence and may exercise in respect of the defendant for the purpose of such proceedings all the powers conferred upon him by law as though the proceedings were proceedings with a view to committal in the first instance. (d) Where the stipendiary magistrate abstains from determining a matter summarily pursuant to paragraph (c), the plea of the defendant taken at the outset of the summary proceedings shall be disregarded and, before committing the defendant for trial or sentence, he shall address the defendant in accordance with the provisions of section 104 of the Justices Act Mode of service of documents. A notice, requisition or other writing authorized or required by this Act to be given to any person shall be duly given if- (a) it is served personally on the person to whom it is directed;

8 Contractors' Trust Accounts Act 1974, No (b) it is left at the place of residence or business of the person to whom it is directed last known to the person who gives it; (c) it is sent by post to the place of residence or business of the person to whom it is directed last known to the person who gives it. 16. Savings. (1) Save as is otherwise provided therein, this Act shall not apply with respect to payment in advance of wages under a contract or engagement solely for the performance of work. (2) This Act shall be read and construed so as not to affect in any way any right or remedy that a person aggrieved might have had if this Act had not been passed. 17. Regulations. The Governor in Council may make regulations not inconsistent with this Act for or in respect of all matters required or permitted by this Act to be prescribed and all matters that are necessary or convenient for the proper administration of this Act or to achieve the objects and purposes of this Act. The regulations may impose a penalty not exceeding $200 for any contravention thereof.