To be considered as an Authorised Nominating Authority for the Office of the South Australian Small Business Commissioner under the Building and Construction Industry Security of Payment Act 2009, please follow the guidelines stated in the Application for Authorisation as a Nominating Authority.

View the Code of Conduct for ANAs below.

Application for authorisation as a nominating authority

To apply for authorisation as a nominating authority, an applicant must lodge a submission to the relevant Minister, through the Office of the South Australian Small Business Commissioner (SASBC), which contains the information listed below.

The SASBC will process applications before referring them to the Minister for determination. SASBC staff may contact applicants to obtain any further information or clarify issues.

For information on the application process, please contact the SASBC on toll free 1800 072 722.

No application fees are payable.

An Authorised Nominating Authority (ANA) is an organisation that has been approved by the Minister under Section 29 of the Building and Construction Industry Security of Payment Act 2009 (the Act) to nominate adjudicators to resolve payment disputes.

Typical functions of an ANA include:

  • giving advice regarding the adjudication of payment disputes under the Act
  • accepting and processing applications for adjudication
  • recruiting and training of a pool of adjudicators
  • allocating disputes to adjudicators for determination
  • issuing adjudication certificates when requested
  • reporting to and liaising with the Office of the South Australian Small Business Commissioner

Any person or organisation can apply to become an ANA. However, authorisation will only be given to applicants who can clearly satisfy the Minister that they are suitable to undertake the role and are able to meet all of their responsibilities under the Act.

Before deciding whether you wish to apply for authorisation, you should carefully consider the requirements of the Act and associated regulations. You should also consider the requirements of the Code of Conduct for Authorised Nominating Authorities, as this sets a guide for expected conduct as an ANA.

  • An applicant prepares a submission, ensuring that it contains all of the details and addresses each point listed below.
  • Applications are sent to Office of the South Australian Small Business Commissioner via GPO Box 1264 ADELAIDE SA 5001.
  • Applications received will be acknowledged by SASBC.
  • Applicants may be contacted by SASBC staff for further information, if required. If there are any issues of concern, applicants will be given an opportunity to address these before a final decision is made.
  • The Minister will provide notification in writing of their decision.

Applicants must provide a submission that contains the information requested in the following sections and they must:

  • Use appendices where a large amount of information is being submitted.
  • Include original copies of National Police Certificates or copies certified by a Justice of the Peace.
  • The application must be signed by the applicant or a director, where the applicant is a body corporate.

For applicants that are corporations please supply the following:

  • Corporation name
  • Any registered business name that will be used for the ANA business
  • Business address of Corporation
  • Postal address of Corporation
  • Phone and fax numbers
  • Email address
  • ABN
  • ACN
  • Web address

A current Company Extract (available from ASIC) or Association Extract must be attached to the application.

For applicants that are individuals, please supply the following:

  • First name/s
  • Surname
  • Any registered business name that will be used for the ANA business
  • Date of birth
  • Business address
  • Postal address
  • Phone and fax numbers
  • Mobile phone number
  • Email address
  • ABN
  • Web address

If the application is for a partnership, the same details above must be provided for each partner.

Provide a National Police Certificate, no more than 3 months old, for each individual or for each director if the applicant is a body corporate. These are available direct from SA Police or interstate police authorities.

The submission must also contain a statement advising whether the applicant, or any director, is currently suspended or disqualified from practicing or carrying on any business, occupation or profession relating to the construction industry or the resolution of disputes.

Provide details of the policies and procedures that will be in place for managing the adjudication process including the pre-application advice given to applicants for adjudication, the processing of applications and the issuing of adjudication certificates.

Provide details of the policies and procedures that will be in place regarding the recruitment of appropriately skilled and qualified adjudicators, the allocation of adjudicators to payments disputes, probity issues (especially conflicts of interest) in the adjudication process and performance management of adjudicators.

Provide details of the fee structure for adjudication applications and any controls on fee levels.

Provide details of the policies and procedures that will be used to investigate and resolve complaints regarding issues with the adjudication process.

Provide written advice as to whether the applicant agrees to abide by the Code of Conduct for Authorised Nominating Authorities.

Provide other information that the applicant believes is relevant to the application.

  1. Authorisation is effective from the date of the Minister’s approval. An applicant cannot commence operating as an ANA in South Australia until the Minister has given formal approval.
  2. If your application is refused you may apply to the Administrative and Disciplinary Division of the District Court (SA) for a review of the Minister’s decision.
  3. The Minister can withdraw authority to act as an ANA at any time. This may occur if the ANA act inappropriately, ceases operations or if the organisation or its directors are deemed not fit and proper.
  4. Ongoing monitoring of ANA operations will be undertaken by the Office of the South Australian Small Business Commissioner. There are regular reporting requirements for ANAs outlined in the Code of Conduct.

Code of Conduct for Authorised Nominating Authorities

The Building and Construction Industry Security of Payment Act 2009 (the Act) was created to improve payment practices and cash flow in the construction industry. It creates a right to progress payments and establishes a system of private adjudication of payment disputes.

Authorised Nominating Authorities (ANAs) and adjudicators play key roles in the security of payment scheme. Adjudication determinations are legally binding decisions that can significantly affect the financial position of businesses and so it is essential that they are made competently and fairly. This Code of Conduct sets some guidelines to assist ANAs in meeting their obligations.

ANAs receive their authorisation from the relevant Minister under Section 29 of the Act. This may be reviewed at any time. Any breach of this Code of Conduct or other general failure to meet their obligations may lead to a review of authorisation for an ANA

An ANA must:

  • Comply with the requirements of the Building and Construction Industry Security of Payment Act 2009 and Regulations at all times.
  • Maintain a physical address within Australia and facilities to receive documents by personal delivery, email, post or fax.
  • Maintain a website that includes:
    • general information about the Act’s requirements and procedures
    • information on the services offered by the ANA and how to access these services
    • information on the fees charged by the ANA and adjudicators, including details of any fee charged by the ANA to adjudicators relating to the appointment and handling of adjudication matters
  • Establish and maintain quality assurance systems.
  • Establish and maintain an effective complaint handling system.
  • Advise all applicants of the application and adjudication fees before accepting an application.
  • Refund any application fee paid if a claimant withdraws their application under Section 26 of the Act.
  • Upon request and without fee, allow a staff member from the Office of the South Australian Small Business Commissioner to attend any training provided to adjudicators, for the purposes of monitoring training quality.

An ANA must, at all times, act ethically and without favour to any party to an adjudication matter.

An ANA must not act in a matter where it will have an actual or apparent conflict of interest.

An ANA must not accept an application for adjudication involving one of its directors, managers, members, shareholders, staff or a close relation or business associate of one of these people, other than in the following circumstances:

  • Where the applicant is a person who is not a member of the ANA, the respondent is a member and the applicant gives specific written acknowledgement that they are aware of the potential conflict of interest and wish for the application to proceed.
  • Where the applicant and respondent are both members of the ANA and both have given specific written acknowledgement that they are aware of the potential conflict of interest and wish for the application to proceed.

An ANA must maintain access to a pool of adjudicators who (combined) have the competence and experience to properly adjudicate the full range of adjudication applications covered by the Act. Any eligibility criteria prescribed in relation to section 18 of the Act must be considered a minimum level. It is the responsibility of the ANA to ensure that the adjudicators it nominates have suitable qualifications and experience for each particular application, as well as ensuring that they meet any eligibility criteria in the Regulations.

An ANA must not nominate a person to act as an adjudicator where it is aware, or reasonably should be aware, that a real or perceived conflict of interest exists between the adjudicator and the claimant or respondent. An example of such a circumstance is where the adjudicator would be nominated to perform adjudication in relation to a dispute:

  • Involving a close relative, business associate or person that they have been in a contractual relationship with within the previous 12 months.
  • Referred to them by an ANA in which they have a financial interest (eg they own shares in the ANA or receive some share of the profits).
  • From an ANA that they are an employee of.

An ANA must not nominate an adjudicator that has been found, by a court in Australia, to have made technical errors in performing adjudications unless the ANA is satisfied that the cause of the error has been resolved.

The making of unbiased decisions is of utmost importance and so an ANA must not, without the written approval of the Minister for Small and Family Business, appoint a person as an adjudicator if that person has been found to have acted not in good faith, twice or more, by a Court in Australia within the last 5 years in relation to adjudication duties.

If there is a change to any of the following details of the ANA, it must send notification within 7 days:

  • organisation name or business name
  • business address
  • director (or board member for an incorporated association)
  • fee levels or structure.

The following events must also be notified within 7 days:

  • if the ANA becomes insolvent or ceases to carry on business as an ANA
  • if any director (or board member for an incorporated association) is charged with an offence involving dishonesty
  • if the ANA becomes aware of the commencement of any court action in relation to or affecting an adjudication application made to that ANA
  • if a complaint about the ANA or an adjudicator is received or finalised, including details of outcome of the complaint.

An ANA must submit quarterly reports (within 1 month of the end of the quarter) in a form approved by the Minister for Small and Family Business.

These reports will provide mainly statistical information and be in the form of a spreadsheet.

The quarterly reports are for the periods ending:

  • 30 September
  • 31 December
  • 31 March
  • 30 June

A copy of all adjudication determinations made during the quarter must accompany the quarterly report. The copies should be in pdf format.

Delivery of reports to be emailed to sasbc@sa.gov.au.

An ANA must submit an annual report for the period up to 30 June each year. This must be submitted by 31 July and contain:

  • The name and qualifications of each adjudicator nominated by the ANA.
  • Details of any training provided to adjudicators.
  • Details of any changes to policies and procedures with respect to:
    • administrative arrangements for processing and managing adjudication applications
    • quality assurance, complaint handling
    • adjudicator training and selection
    • nomination of adjudicators
    • identifying and managing actual or perceived conflicts of interest
    • summary of adjudication outcomes and trends.

Delivery of reports to be emailed to sasbc@sa.gov.au.