I have not been posting here as much as usual recently, for the prosaic reason that I have been fully stretched working on cases that have demanded full-time attention.
One advantage of the bar is that there is a sort of self-limiting protection against overwork: one can only be in one court at a time. And so I have had to turn away a number of briefs recently simply because I have been already briefed to do something else at the same time. When I was a solicitor, there was no such mechanism. So, “Sorry” to those I have had to say “no” to.
The great majority of what I have been doing has been in relation to adjudications, and I was very pleased to see that the Federal Government has launched a review into the absurd disparities between the Acts in different States and Territories, to be run by John Murray. I was honoured to be able to lead the Society of Construction Law Australia’s report into all of this in 2014: we came down firmly in favour of a federal system. I have acted or advised in adjudications in all jurisdictions in Australia apart from Tasmania and the ACT, and have encountered no good reason at all for the present patchwork of quite different regimes in different States and Territories. The challenges and the best answers are the same everywhere.
The Federal Government’s Media Release is as follows:
The Turnbull Government has appointed Mr John Murray AM to conduct a review of security of payments laws in the building and construction industry.
Across Australia, there are significant differences in approach to security of payments laws, which impact on the level of protection afforded to subcontractors. In order to identify best practice, Mr Murray will undertake a wide-ranging review in consultation with business, governments, unions and other relevant interested parties.
The review will deliver a final report no later than 31 December 2017 and include a range of recommendations to be considered by Government.
Mr Murray became a Member of the Order of Australia in 2014 for his service to the building industry. Specialising in building-contract disputations and security of payments legislation, Mr Murray is eminently qualified to undertake this review.
The Australian Building and Construction Commission legislation includes enhanced protections for building industry subcontractors by requiring compliance with security of payments legislation.
The Government is committed to exploring further ways in which security of payments rules can be strengthened in order to ensure the building industry is fair and productive for all participants.
And these are the Terms of Reference:
Terms of Reference: Review of Security of Payment Laws
The lack of consistent security of payment across jurisdictions has been identified by various reviews and inquiries as an ongoing issue in the building and construction industry.
The Senate Economic References Committee on insolvency in the Australian construction industry heard evidence, that while well-intentioned, the often vastly different security of payment laws operating in each jurisdiction are not working as well as intended and there are barriers to access. The Committee also found that it is a fundamental right of anyone that performs work in accordance with a contract to be paid without delay for the work they have done.
The Review will:
examine security of payment legislation of all jurisdictions to identify areas of best practice for the construction industry
take into account any reviews and inquiries that have recently been conducted in relation to security of payment, including the December 2015 report by the Senate Economic References Committee on insolvency in the Australian construction industry and the draft legislation developed by the 2003 Cole Royal Commission into the Building and Construction Industry
consult with business, governments, unions and interested parties and the Security of Payments Working Group
consider how to prevent various types of contractual clauses that restrict contractors in the construction industry from obtaining payments for work that has been completed
In making recommendations, the Review should consider other models including the model that operated in the Queensland jurisdiction prior to 2014.
The Review is to provide a progress report to the Minister for Employment by 30 September 2017 with the final report, which includes recommendations, provided to the Minster no later than 31 December 2017.
I wish Mr Murray well very in his work.