Towards Harmonisation of Construction Industry Payment Legislation: A Consideration of the Success Afforded by the East and West Coast Models in Australia
This article considers the success of the two distinct construction industry payment legislative models operating in Australia – “East Coast” and “West Coast” – in achieving their objective of improving cash flow throughout the construction industry. Success parameters are identified by the authors – namely: the levels of justice afforded by the legislation, the administrative and legal burden generated by the legislation, and the impact of the legislation on the relationships between the contracting parties – which are used as a basis to discuss and compare the performances of the East and West Coast models. It is concluded that the West Coast model provides a more just dispute resolution process, generates less administrative and legal burden, and is more conducive towards establishing positive relationships between contracting parties. However, it is recognised that there is a need for more data to be gathered from construction industry stakeholders before any firm recommendations can start to be made as to the most appropriate conceptual framework and detail for a harmonised approach.
Bailey. I. (2009) Harmonisation or Reform of Legislation: Construction Industry and Dispute Resolution, Paper delivered at Construction Law Seminar, Melbourne Law School, 10 November 2009
Bell, M. and Vella, D. (2010) From motley patchwork to security blanket: The challenge of national uniformity in Australian security of payment legislation", Australian Law Journal, 84, 565"
Bingham, L.B. (1997) Employment Arbitration: The Repeat Player Effect, Employee Rights and Employment Policy Journal, 1, 189"
Bingham, L.B. (2008) Designing Justice: Legal Institutions and Other Systems for Managing Conflict, Ohio State Journal on Dispute Resolution, 24, 1"
Brand, M.C. and Uher, T. (2010) Follow-up empirical study of the performance of the New South Wales construction industry security of payment legislation, International Journal of Law in the Built Environment, 2, 1"
Building & Construction Industry Payments Agency (2009) Annual Report 2008-09, BCIPA website, viewed on 20 April 2010, <http://www.bcipa.qld.gov.au/SiteCollectionDocuments/Publications/Annual%20Report%200 8009.pdf>."
Building & Construction Industry Payments Agency (2010) Adjudication Statistics -April 2010 Report, BCIPA website, viewed on 20 April 2010, "
Coggins, J, (2009) A Review of Statutory Adjudication in the Australian Building and Construction Industry, and a Proposal for a National Approach, Proceedings of the Construction and Building Research Conference of the Royal Institution of Chartered Surveyors (COBRA 2009), Cape Town"
Cole, T.R.H. (2003) Final Report of the Royal Commission into the Building and Construction Industry, Commonwealth of Australia, February 2003
Constable, A. (2006) Construction industry payment and adjudication legislation: the choice that lies ahead for Malaysia, International Construction Law Review 78, 80"
Constantino, C.A. and Sickles Merchant, C. (1996) Designing Conflict Management Systems, A Guide to Creating Productive and Healthy Organizations, Jossey-Bass Publishers, San Francisco
Construction Contracts Registrar (2009) Report of the Construction Contracts Registrar for the year ended 30 June 2009, WA Building Industry Development website, viewed on 20 April 2010, <http://www.buildingcommission.wa.gov.au/bid/Annual_Reports_BID.aspx>
Coulson, P. (2007) Construction Adjudication, Oxford University Press.
Davenport, P. (2004) Adjudication in the Building Industry, 2nded, Federation Press, Annandale, NSW
Davenport, P. (2006) Construction Claims, 2nded, Federation Press, Annandale, NSW
Davenport, P. (2007) A Proposal for a Dual Process of Adjudication, Australian Construction Law Newsletter, 115, 12-24"
Davenport, P. (2010) Security of payment now Australia wide131 Australian Construction Law Newsletter, 36"
De Cremer, D. and van Knippenberg, D. (2003) Cooperation with leaders in social dilemmas: on the effects of procedural fairness and outcome favourability in structural cooperation, Organizational Behaviour and Human Decision Processes, 91, 1-11"
Fenwick Elliott, R. (2007) 10 Days in Utopia, Proceedings of the Institute of Arbitrators & Mediators Australia, Glenelg, South Australia"
Jacobs, M.S. (2010) Security of Payment in the Australian Building and Construction Industry, 3rded, Thomson Reuters, Pyrmont, NSW
Latham, M. (1993) Trust and Money: the Interim Report of the Joint Government/Industry Review of Procurement and Contractual Arrangements in the United Kingdom Construction Industry, HMSO, London
Lloyd, H. (2001) Adjudication, International Construction Law Review 437"
NSW Department of Public Works and Services (2002) Review Discussion Paper -Options for Enhancing the Building and Construction Industry Security of Payment Act 1999, available at <http://ableadjudication.com.au/wp-content/uploads/2010/02/sop-discussion-paper-200209.pdf>"
NSW Procurement (2009) Building and Construction Industry Security of Payment Act 1999 Fact Sheet, obtained by request from the NSW Department of Commerce
O'Reilly, S. and Stankiewicz, L. (2006) Unique overhaul of security of payment in Victoria, Clayton Utz Projects Insights, 16 August 2006"
Redenbach, K. (2007), Getting paid in the construction industry â national perspective 23 Building and Construction Law Journal 92"
Riddell, R. (2009) The Cases for and Against Harmonisation of Security of Payment Regimes in Australia, Proceedings of the Institute of Arbitrators and Mediators Australia National Conference, Melbourne"
Ridley, S. (2006) Security of payment changes continue in Victoria, 18(7) Australian Construction Law Bulletin 81."
South Australian House of Assembly (2009) Hansard, 29 October 2009, viewed on 30 April 2010, <http://hansard.parliament.sa.gov.au/docloader/House%20of%20Assembly/2009_10_29/Dai ly/House%20of%20Assembly_C_Daily_DIST_2009_10_29_v5.pdf>
Susskind, L. and Cruikshank, J. (1987) Breaking the Impasse: Consequential Approaches to Resolving Public Disputes, Basic Books, New York
Tyler, T.R. (2000) Social justice: outcome and procedure, International Journal of Psychology, 35, 117-125."
Ury, W. Brett, J.M. and Goldberg, S.B. (1988) Getting disputes resolved: designing systems to cut the cost of conflict, Jossey-Bass Publishers, San Francisco
Van Veen, D.H., Kreutzwiser, R.D. and de Loâ, R.C. (2003) Selecting appropriate dispute resolution techniques: a rural water management example, Applied Geography, 23, 89-113"
Warren, E. and Thwaites, A. (2007) Amendments to the Victorian security of payment regime underway, Allens Arthur Robinson Client Update, 8 May 2007"
Zhang, T. (2009) Why national legislation is required for the effective operation of the security of payment scheme, Building and Construction Law Journal, 25, 376"
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