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Queensland Government Bulletin

11 May 2021

#Government, #Construction, Infrastructure & Projects

Published by:

Anita Cukic

Queensland Government Bulletin

New Project Trust Account rollout under the Building Industry Fairness (Security of Payment) and Other Legislation Amendment Act 2020

On 1 July 2021, the next phase of the implementation of the requirement for head contractors to establish Project Trust Accounts (PTAs) and Retention Trust Accounts (RTAs) on Queensland projects commences.

The commencement of the new phase will require head contractors to establish a PTA on a broader range of State Government and Hospital and Health Service projects than ever before by removing the previous $10 million valuation ceiling so that the scheme will now apply to larger projects.  

Payments through a PTA fundamentally alters the traditional project payment model that historically involved head contractors paying subcontractors from their own bank account rather than a PTA. The rollout of the new system is set to continue over the next two years and PTAs will soon be required on most private and public sector commercial construction projects in Queensland valued at over $1 million.     

Although other states throughout Australia have trialled, or considered implementing, some form of statutory trust system as a way of regulating payments to subcontractors on major projects, Queensland is the first state to commit to such wide-reaching legislative reform in this area. The timing and scale of the rollout mean it is now urgent for the industry to understand exactly how and when PTAs will operate.

In this article, we will cover:

  1. the background to the scheme
  2. key changes between the Project Bank Accounts (PBA) framework and the new PTA framework
  3. commencement dates for the expanded rollout of the PTA requirements.

Background to the scheme

On 15 July 2020, Queensland Parliament passed the Building Industry Fairness (Security of Payment) and Other Legislation Amendment Act 2020 (BIFOLA). The BIFOLA amends existing legislation and is the latest step in a well-publicised legislative reform program embarked upon by the current Queensland Government which will, once completed, radically change the way payments are made on most construction projects in this State.

The first step in the process was the introduction of the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act) in 2018. The BIF Act introduced the requirement for head contractors to establish Project Bank Accounts (PBAs)but only on certain and, relatively limited, State Government projects valued between $1 million and $10 million (including GST).  

Subsequently, an evaluation panel was appointed by the Government to examine the impacts of the introduction of PBAs on the initial trial basis and, after a period of consultation with relevant stakeholders, that panel produced a report containing 20 recommendations on how the PBA framework could be changed and rolled out to ultimately cover a broader range of projects.

Each of these recommendations was adopted by the Government and have now been implemented (along with other changes to building legislation in the State) in the BIFOLA, which amends the BIF Act as well as other existing legislation.

On a superficial level, the BIFOLA alters the previous terminology by replacing the current requirement for a head contractor to establish a PBA with a requirement to establish a PTA on ‘eligible contracts.’ However, in substance, the new framework has a number of key differences to the old PBA system.   

Key changes between PBAs and PTAs

Under the previous PBA framework, a head contractor was required to open three separate bank accounts for each eligible project:

  • a general trust account
  • an RTA
  • a disputed funds trust account.

This process has now been simplified and streamlined. Under the new PTA framework, the ‘disputed funds trust account’ has been abolished. Instead, head contractors will only need to open:

  • one project trust account per eligible project
  • only one RTA per head contractor.

This significantly reduces the account administration required of industry participants as compared to the PBA scheme. As noted above, the BIFOLA mandates that only a single account for cash retentions is required to be established for all projects where a PTA is required. This is a major change from the PBA requirement to establish different individual RTAs for each individual project.

Another significant change is that principals (who were almost exclusively the State Government under the PBA scheme) will no longer have the same level of oversight over the head contractor’s administration of a PTA. However, the Queensland Building and Construction Commission (QBCC), will take on an increased role in regulating compliance with the framework.

The QBCC’s powers now include:

  • maintaining a register of PTAs and RTAs in the State
  • the ability to appoint special investigators into PTA and RTA activities
  • the ability to require disclosure of information such as trust account records (ledgers, details of financial institutions where PTAs/RTAs are held, the relevant construction contracts)
  • the ability to apply to the Supreme Court for directions about amounts held in PTAs or RTAs.

PTA rollout commencement dates

The Queensland Government has planned for PTAs to be implemented over four phases to manage the transition to this new way of payment. This has been done by each new phase expanding the applicability of the requirements to a broader range of projects.

The requirement to establish a PTA will only apply when the relevant head contract is for at least 50 per cent ‘project trust work’, which is defined broadly by the legislation to include most work undertaken in connection with a construction project. Importantly, ‘project trust work’ does not include work on transport infrastructure projects (e.g. roads, busways, tunnels, bridges and railways) and most mining work. Accordingly, there will not be a requirement to establish a PTA on those projects.

Phase 1 of the PTA rollout is currently in effect and commenced on 1 March 2021. The commencement dates for each of the phases are as follows:


Although the PTA rollout has now commenced, if a head contract is entered into because of a tender process that started before 1 March 2021, there is no requirement to comply with the BIFOLA PTA framework. However, the old PBA framework will apply to that head contract if it would have required a PBA under the BIF Act before the PTA amendments.

If the tender process for a contract started on or after 1 March 2021 and the commencement of the PTA scheme (or if there was no tender process for the contract at all), the relevant rollout phase applicable to the contract is determined by reference to the time the contract was entered into – i.e. the date of execution of the head contract.

If a contract does not require a PTA before the commencement of a new rollout phase, the project continues to not require a PTA despite the new phase coming into effect. However, this is subject to the exception that some amendments to the contract after execution (like variations or an increase in the contract price) may still trigger the need for a PTA to be established.

It is crucial that all stakeholders take the time to understand how the rollout will impact them and what will be required.

Authors: Stephen Burton, Stephanie Flower & Anita Cukic 

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Cases

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Administrative Appeals Tribunal Act 1975 (Cth); Administrative Decisions (Judicial Review) Act 1977  (Cth); Federal Court of Australia Act 1976 (Cth); Judiciary Act 1903 (Cth)

Dring v Telstra Corporation Ltd [2021] FCAFC 50
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Administrative Appeals Tribunal Act 1975 (Cth) s 44
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Workers Compensation Act 1987 (NSW) s 4

SDCV v Director-General of Security [2021] FCAFC 51
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ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal to affirm an adverse security assessment (ASA) – where ASA determined that the applicant supported politically motivated violence and the Islamic State of Iraq and the Levant – where ASA determined that the applicant employed communications security tradecraft practices while engaging with individuals of security concern – where both open and closed evidence, submissions and reasons furnished which the applicant was prohibited from knowing or considering – held: the Tribunal did not apply an incorrect construction of phrase “directly or indirectly a risk to security” within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) – obligation to give reasons under s 43(2) of the AAT Act still applied where a direction under s 43AAA(5) of the AAT Act was in force but could not be read to require closed reasons to be produced – the Tribunal did not err by way of failure to make findings in concluding that the open evidence alone could not lead to a conclusion on whether the ASA was justified and in not making any positive findings on that evidence – there was no denial of procedural fairness by way of a failure to give the applicant sufficient information to make meaningful submissions as the applicant was able to answer the proposition put to him – there was no denial of procedural fairness having regard to the legislative context – it was open to the Tribunal to reach the decision based on the open and closed evidence – application dismissed 

Cambridge; Chief Executive Officer, Services Australia and (Freedom of information) [2021] AATA 1142
FREEDOM OF INFORMATION – whether practical refusal reason exists – majority of documents that are the subject of the request already provided under administrative access arrangements – processing the FOI request would substantially divert resources of Services Australia from its other operations – diversion of resources for 88.5 hours to provide documents that have already been provided is unreasonable – reviewable decision set aside and substituted 

'XB' and Cancer Australia (Freedom of information) [2021] AICmr 15
Freedom of Information — Amendment and annotation of personal records — Whether the records are incorrect — Whether the records should be amended — (CTH) Freedom of Information Act 1982, ss 48, 50, 51, 51A and 55D 

Strong v Health Ombudsman; Health Ombudsman v Strong [2021] QCAT 105
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the practitioner is an unregistered health practitioner – where the practitioner is a massage therapist – where two complainants accuse the practitioner of boundary violations – where the practitioner seeks directions pursuant to section 62 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) that the Health Ombudsman obtain and provide to the practitioner certain information about the complainants’ medical histories and criminal histories – whether the Tribunal has power to make such directions – whether, if the Tribunal has such power, it should exercise the discretion to make such directions. Health Ombudsman Act 2013 Qld s 68, s 103, s 104, s 113; Queensland Civil and Administrative Tribunal Act 2009 Qld s 28, s 62

Legislation

Commonwealth

Regulations

Public Governance, Performance and Accountability Amendment (National Recovery and Resilience Agency) Rules 2021 
05/05/2021 - This instrument amends the Public Governance, Performance and Accountability Rule 2014 to rename the National Drought and North Queensland Flood Response and Recovery Agency and to amend and expand the purposes of the listed entity.

Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021
01/05/2021 - This instrument requires passengers on a relevant international flight not to enter Australian territory at a landing place if the person has been in India within 14 days of the day the flight was scheduled to commence.

Queensland

Bills updated 29 April 2021

Youth Justice and Other Legislation Amendment Bill 2021
Stage reached: Passed with amendment on 22/04/2021
Assent Date: 30/04/2021 Act No: 9 of 2021 Commences: Date of Assent

Subordinate legislation as made – 30 April 2021
No 39 Legal Profession Amendment Regulation 2021

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Anita Cukic

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