A review was recently commissioned from Alan Moss, who is a former District and Youth Court judge, and this has now been published.The main recommendation of the Review is that the Minister should remove the authorisation of all of the existing ANAs, and instead appoint the relevant government officer, who is the Commissioner for Small Business, as the sole ANA. In this way, it is proposed to deal with the widely perceived institutional bias in the ANA system without the need for amending legislation.
This review is very welcome, the ANAs in South Australia having a particularly poor track record.
The review also suggests some expansion of the time limit for adjudicators making their determination in larger, more complex cases. Again, the suggestion that is that this could be done without legislation, but the mechanism proposed in the Review is very much less robust in this regard. It is suggested that an adjudicator might, under section 21(4)(a) request further submissions in complex case, and set a deadline for those submissions well outside the 10 business day period allowed for the determination. It is to be doubted that any such mechanism is available to an adjudicator. That said, it is possible that the somewhat wide powers under the Act to make regulations under section 35 might be sufficient to extend the timetable in specified matters, for example over a specified amount of claim, without the need for amendment of the Act itself.
In any event, it seems very likely that there will be a shakeup in the way that the Act works in South Australia as a result of the Review, and that will leave only Tasmania and the ACT as places where the original East Coast model remains intact. That is hardly surprising; that model is deeply flawed.
It also means that there will be virtually no harmony between the States in this area of law. That is highly unsatisfactory. The Society of Construction Law Australia’s report last year recommended that there should be federal legislation, the States evidently unable to harmonise effectively. But whether the federal government can be bothered by the issue is open to question; it probably thinks that there are more votes to be won and lost in other areas of government.