Legislative review of the Building and Construction Industry Act 2004 (Qld)
Minister for Housing and Public Works, Mr Tim Mander MP released a discussion paper in December 2013, seeking feedback from the industry stakeholders about the operations of the Building and Construction Industry Payments Act 2004 (Qld) [BCIPA].
The Discussion Paper seeks a review of the following:
Comment is sought on a number of jurisdictional issues, questioning whether the scope of a “Construction Contract”, as defined under the BCIPA, should be reduced.
BCIPA procedural issues
Comment is sought on a number of procedural issues for consideration, including:
• Whether there is a need for a “Payment Claim” to be endorsed as being made under the BCIPA; and
• The appointment of Adjudicators by Authorised Nominating Authorities; and
• Time frames for making and responding to a payment claim; and
• Suggestions that the BCIPA should be amended to provide a mechanism to allow funds owing under a head contract (by a principal) be held under a legislative charge, pending the adjudication decision; and
• Whether security of payment is an issue in relation to retention monies.
Regulation of contractual terms
Comment is sought on the prospects of amending the BCIPA to further regulate contractual terms. This is in line with BCIPA’s current provisions, including effectively making void the operation of specified unfair payment arrangements, such as “pay when paid” terms.
Furthermore, comment is sought in relation to the following specific contractual issues:
• Whether the BCIPA could be amended to invalidate any unreasonable time frame for notifying extension of time requests within contracts; and
• Whether provisions entitling a principal or superior contractor to terminate a contract for convenience should be void; and
• Whether the BCIPA should be amended to specifically address preconditions imposed by a contract or the issue of payment claims; and.
• Whether adjudicators should be given statutory power to declare unreasonable and unfair preconditions to issuing a payment claim void.
On 15 April 2014, the Building and Construction Industry Payments Agency will be holding an “Adjudicators Briefing” in the Brisbane Convention and Exhibition Centre, South Brisbane.
Registered Adjudicator and Managing Director of Colville Johnstone Lawyers, Bruce Johnstone, has been invited to attend the briefing and will further report on the review in due course.