Construction

06 September 2007

Excise of Building and Construction Industry Payments Act from Judicial Review Act

The amendments

The Justices and Other Legislation Amendment Bill 2007 (Qld) (Bill), was introduced into State Parliament on 19 April 2007 by the Honourable Kerry Shine, Attorney-General, Minister for Justice and Minister Assisting the Premier in Western Queensland.

Clause 91 of the Bill, relates to the removal of the right of judicial review in respect of decisions of adjudicators under the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA).

On 23 August 2007, Queensland State parliament resolved to adopt clause 91 of the Bill thereby amending Schedule 1 Part 2 of the Judicial Review Act 1994 (Qld) (JR Act), so as to excise from the scope of the JR Act decisions of adjudicators made under BCIPA.

This move will have significant implications for those involved in the building and construction industry looking forward.

Rationale

Proponents for the amendment justified the change on the basis that:

• the availability of review under the JR Act serves to defeat the objective of BCIPA to provide a quick and informal process for the interim resolution of payment disputes under building and construction work contracts, and
• the amendment does not exclude adjudicators’ decisions from any form of common law review under the inherent powers of the Supreme Court – ensuring that rights and interests of persons affected by determinations are sufficiently protected.

Those against the move within the Parliament remarked that as review under the JR Act is actually speedier than common law review, one would think the objectives of BCIPA and the rule of law are better served through BCIPA’s inclusion within the scope of JR Act review.

Implications

The excise of BCIPA from the scope of the JR Act will have significant consequences, especially for respondents in adjudication matters.

As decisions will no longer be open for review under the JR Act, the rights of respondents wanting to challenge the decisions of adjudicators will be further restricted.

That being said, though review under the JR Act will no longer be a potential avenue of pursuit, parties will remain free to challenge decisions under BCIPA through common law avenues. Only time will tell how such avenues are to be utilised looking forward.

For further assistance or enquiries please contact Bill Morrissey or Russell Thirgood