I have now had the opportunity of a further look at the recently released Murray Review, which I briefly mentioned the other day in my post Queen of Hearts – A Good Idea Endorsed.

The Review is a lengthy document, and overall it is a substantial and admirable piece of work. Some of it reaches conclusions that I would not have reached, but I need to be careful here, since it includes quite a bit that I wrote, or which has been redrafted from suggestions that I have made[1], in particular:

• The phrase “Pay now, argue later”, now widely used around the world to describe the fundamental nature of an excessive adjudication determination (page 82);
• The Queen of Hearts clause, quoted at page 289 and recommended at Recommendation 84;
• Several of the extracts from the 2014 SoCLA Report;
• The “Red card, yellow card” formula to be found in the South Australian Code of Conduct at pages 244 and 245 (Recommendations 67 and 68), which I had originally suggested to Alan Moss for the purpose of the Moss Review;
• Several of the extracts from SoCLA’s submission to the Murray review, including the recommendation of that system (page 63) and the summation of the June 2017 SocLA event (page 287).

John Murray is an accredited adjudicator in several East Coast jurisdictions, and no doubt one of the very best of them (he is clever, fair and diligent, as well as being good company).  People tend to do what they have done in the past, and to recommend what they know; perhaps it is no surprise that the East Coast model is his preferred starting point for a national system.  An unintended irony lies therein. John Murray includes a revealing graphic about international payment practices on page 14, as follows:[2]

Australia ranks very porly here. The East Coast model has held most of the field in Australia since its introduction in 1999. It plainly has not worked. And yet John Murray recommends its endorsement, albeit with some useful improvements. Why persist with something which does not work, especially where there are alternatives which do work?  I tried to persuade him to look more closely, not just at security of payment in the region (Australasia and South-East Asia) but the worldwide and particularly UK experiences, but without success – the Review barely mentions the UK or Irish legislative scheme.

Personally, I believe the art of government is best practised with a light hand. The reason I am sceptical of totalitarian solutions – where government imposes rigid Continue reading →