Australia: Construction & Infrastructure News - 28 February 2018

Last Updated: 2 March 2018
Article by Troy Lewis, Stephen Burton, Suzy Cairney, Stephen Natoli, Kyle Siebel, Scott Alden, Christine Jones and Helena Golovanoff

Most Read Contributor in Australia, March 2019

In the media

Infrastructure Australia calls for national leadership on cities
A new report from Infrastructure Australia is calling for the Federal government to have a greater leadership role in securing the global competitiveness of our largest cities, recommending the Commonwealth Government establish a framework of incentives to improve the productivity, liveability and affordability of Australia's largest cities (23 February 2018). More...

The Security of Payment Act and its important consequences
The Security of Payment Act is meant to be critical for builders to get paid for construction works that they do (22 February 2018). More...

Western Australia's building industry rocked as another major company halts trading
Just weeks after Cooper & Oxley slid into voluntary administration, the building industry suffers another blow with major civil landscaping company BCL Group suspending trading to assess its financial viability (22 February 2018). More...

Strata stakeholders in turmoil over cladding crisis
Strata owners corporations are facing insurance premium rises of 300 per cent in response to the flammable cladding crisis, while one Sydney owner we spoke to is facing serious financial hardship from replacement costs. There's an urgent need for accountability but little action (22 February 2018). More...

Financiers tell EU to get radical on financing green projects
A high-level group on sustainable finance has advised European regulators to incentivise a more favourable treatment for energy saving loans and mortgages, which could unlock billions in lending for green building renovation programs and other green projects (20 February 2018). More...

High Court rules in favour of ABCC: Court can order officials personally pay penalties
The High Court of Australia today confirmed the Federal Court can order a union official to personally pay a penalty and not seek reimbursement or indemnity from the union (14 February 2018). More...


Prosecutable offences under the Victorian Building Act 1993
There is a litany of ways by which a property owner or building practitioner can run afoul of the penalty provisions of the Building Act 1993 (22 February 2018). More...

Paying the price for unsafe scaffolding
A Ballarat construction company has been convicted and fined $25,000 for ignoring WorkSafe directions to fix unsafe scaffolding at a Mount Clear worksite. The court heard that two subcontractors said they were directed by a Myrti representative to work on the roof of the construction, and were not aware there was a prohibition notice in respect to the scaffolding (20 February 2018). More...

Victoria's response to cladding discussed at industry forum
Victoria Building Authority CEO Sue Eddy joined the Co-Chairs of the Victorian Cladding Taskforce, Ted Baillieu and John Thwaites, at an industry forum on cladding. Ms Eddy said "the assertion that buildings are only being declared retrospectively non-compliant does not stack up against the evidence the VBA has gathered through its audit program" (15 February 2018). More...

Record year for building work in Victoria – 112,900 permits valued at $36 billion
The value and number of building permits reported to the Victoria Building Authority in 2017 was at record levels, with a total of 112,882 permits issued for work valued at $35.8 billion (14 February 2018). More...

New South Wales

New South Wales defect bond scheme is beset with problems
Few issues force politicians to act on dodgy building practices more than reports of 85 percent of new apartments being riddled with defects (23 February 2018). More...

Under siege: Sydney's medieval infrastructure governance
Reform of both agency and political governance is a prerequisite for the delivery of truly city-building infrastructure (20 February 2018). More...


Jobs for North Queensland as Townsville pipeline progresses
Eighteen months out from first taps being turned, economic benefits from the Townsville pipeline duplication project are already flowing to North Queensland businesses. Work on the 36km pipeline has commenced and is due for completion by the end of 2019 (21 February 2018). More...

Strong local and global field lines up to build Cross River Rail
The Palaszczuk Government has today announced the shortlisted companies for the contract to build Queensland's highest priority infrastructure project, Cross River Rail. Queensland Acting Premier, Jackie Trad, said the announcement followed a comprehensive evaluation by the Cross River Rail Delivery Authority of the Expressions of Interest received for the project's two major works packages (20 February 2018). More...

Resort residents angry at inaction over possible seawall collapse
A resort built on a beach at Hervey Bay on Queensland's Fraser Coast could fall apart in the next big cyclone or significant storm, a recent engineers' report warns, finding the main seawall at the resort is "not compliant" (11 February 2018). More...


Future Cities: Planning for our growing population
Infrastructure Australia: released 23 February 2018
The fifth paper in Infrastructure Australia's Reform Series. It provides advice to Australian governments on improving the productivity and liveability of our largest cities as they grow over the next 30 years. More...

Paying for affordable housing in different market contexts
Bill Randolph, Laurence Troy, Vivienne Milligan, Ryan van den Nouwelant; Australian Housing and Urban Research Institute: 14 February 2018
This study analysed recently completed affordable housing developments across Australia to ascertain how affordable housing project costs, revenues and subsidies interact. More...

ACI Construction Briefs
A fortnightly communication highlighting key updates related to Australia's construction industry.
ACI Construction Brief: Everybody has a view, but ... (19 February 2018).

Australian Bureau of Statistics

21/02/2018: Construction Work Done, Australia, Preliminary, Dec 2017 (cat no. 8755.0)

Practice and courts

Construction code changes planned
The Australian Building Codes Board is seeking feedback on proposed changes to the National Construction Code 2019. The changes included improved fire safety measures, and removing the ability to use bonded laminated material where a non-combustible material is required. More...

New South Wales

Resources Infographics Snapshot (January 2018)
The Division has created a series of quick reference sheets highlighting some key facts and numbers relating to resources in New South Wales (23 February 2018). More...


QBCC: Builders reminded to ensure firefighting equipment is provided during construction
The Technical Standards Unit (TSU) within the QBCC has sought to flag this issue with the construction industry, after identifying concerns with a small number of builders of multi-storey Class 2 to 9 buildings. The QBCC Commissioner has notified that some builders had not ensured that the required firefighting equipment mandated under Part E1.9 of Volume 1 of the Building Code of Australia (21/02/2018) was provided during construction (20 February 2018). More...


Andriotis v Victorian Building Authority [2018] FCAFC 24
ADMINISTRATIVE LAW – Mutual Recognition Act 1992 (Cth), Part 3, mutual recognition of occupations –appeal from decision of the Administrative Appeals Tribunal affirming the decision of the local registration authority – where the applicant, a registered waterproofer in New South Wales, applied for registration as a waterproofer in Victoria – whether the applicant was entitled to registration in Victoria – whether registration authority was entitled to take account of the applicant's "good character" in an assessment of the application for registration – where s17(2) provides for an "exception" to the mutual recognition principle for operation of laws which "regulate the manner of carrying on" an occupation – where s17(2)(b) provides a qualification to that exception that those laws may not relate to the "possession of some qualification" relating to "fitness to carry on" the occupation – whether "good character" is a qualification engaging s17(2)(b) – "good character" is a qualification according to the natural and ordinary meaning of "qualification" – nothing in the context and purpose of the provision requires a meaning other than the natural and ordinary meaning of "qualification" to be employed – whether the Tribunal retained a residual discretion to refuse under s20(2) – s20 not concerned with refusal – registration authority had no power to refuse application on any ground other than those contained in ss23(1)(a)–(b) – registration authority not entitled to separately consider applicant's "good character" – appeal allowed.

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3
Leave is granted for the appellant to amend the notice of appeal in the manner set out in the proposed amended notice of appeal exhibited to the affidavit of Brendan Charles dated 10 November 2017.
Industrial law – Pecuniary penalties – Where union official contravened civil remedy provision of Fair Work Act 2009 (Cth) – Where union contravened civil remedy provision through union official's conduct – Where s546 of Fair Work Act provides court can order person to pay pecuniary penalty – Where s545(1) of Fair Work Act provides court can make any order it considers appropriate if satisfied person contravened, or proposes to contravene, civil remedy provision – Where pecuniary penalties imposed on both union official and union – Whether s545(1) or s546 of Fair Work Act or s23 of Federal Court of Australia Act 1976 (Cth) empowers court to order that union not indemnify union official against pecuniary penalty – Whether s545(1) or s546 of Fair Work Act or s23 of Federal Court of Australia Act empowers court to order that union official not seek or accept indemnity or contribution from union in respect of pecuniary penalty.

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4
Appeal dismissed. Administrative law – Judicial review – Availability of certiorari – Error of law on face of record – Non-jurisdictional error – Building and Construction Industry Security of Payment Act 1999 (NSW) – Where Act confers entitlement to "progress payment" on persons who undertake to carry out construction work under construction contracts and provides scheme for determining disputed claims – Where first respondent made claim for progress payment – Where claim referred to adjudicator for determination – Where adjudicator made error of law in reasons for determination – Where reasons form part of record – Whether Act ousts jurisdiction of Supreme Court of New South Wales to make order in nature of certiorari to quash determination for non-jurisdictional error of law on face of record.
Words and phrases – "clear legislative intention", "error of law on the face of the record", "interim entitlement", "jurisdictional error", "non-jurisdictional error", "order in the nature of certiorari". Building and Construction Industry Security of Payment Act 1999 (NSW), Pts 2, 3; Supreme Court Act 1970 (NSW), ss22, 69.

Maxcon Constructions Pty Ltd v Vadasz [2018] HCA 5
Appeal dismissed. Administrative law – Judicial review – Building and Construction Industry Security of Payment Act 2009 (SA) – Where subcontract provided for sum to be paid to subcontractor after issue of certificate of occupancy – Where issue of certificate of occupancy required certification from builder that building work performed in accordance with head contract – Where adjudicator appointed to determine disputed payment claim – Where adjudicator determined provisions of subcontract ineffective because pay when paid provisions – Whether adjudicator's determination involved error of law – Whether adjudicator's determination should be quashed.
Administrative law – Judicial review – Availability of certiorari – Error of law on face of record – Whether Building and Construction Industry Security of Payment Act 2009 (SA) ousts jurisdiction of Supreme Court of South Australia to make order in nature of certiorari to quash adjudicator's determination for non-jurisdictional error of law on face of record.
Words and phrases – "contingent or dependent on the operation of", "error of law on the face of the record", "order in the nature of certiorari", "pay when paid provision", "retention provisions". Building and Construction Industry Security of Payment Act 2009 (SA), Pts 2, 3. Development Act 1993 (SA), s67. Development Regulations 2008 (SA), reg 83, Sch 19A.

Mrdajl v Southern Cross Constructions (NSW) Pty Ltd (In Liq) [2018] NSWSC 161
PRACTICE AND PROCEDURE – Civil Liability (Third Party Claims Against Insurers) Act 2017 – application– substitution of insurers in certain circumstances – application for leave pursuant s5 – requirements of s4(1) – jurisdictional facts –construction of ss4 and 5 – insufficient evidence – application refused with costs.



Bills Re-Introduced into Parliament – 15 February 2018

Plumbing and Drainage Bill 2018
The Bill establishes a new legislative framework for plumbing and drainage in Queensland, together with the licensing of plumbers and drainers. The Bill is to repeal the Plumbing and Drainage Act 2002, and to amend the Planning Act 2016 and the Queensland Building and Construction Commission Act 1991.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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