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Statutory Intervention into the Common Construction Law of Australia – Progress or Regress?

by Donald Charrett

Donald Charrett & Matthew Bell (Melbourne Law School) (2011) 137 Australian Construction Law News 6.

Much of Australia’s common law does not substantially differ from the common law of England where it originated. Whilst Australia is a federation of six States and two Territories, the High Court of Australia, the country’s final court of appeal, has recently fostered the view that not only is there a “common law of Australia” but also that it is “a single and unified one”. However, as in any common-law jurisdiction, the legislators of the nine Australian jurisdictions (including the Federal) have intervened to supplement or replace the common law in many areas.

Construction law is no exception to such intervention. The major statutory incursions comprising departures from the common law which are of interest to construction lawyers are:

(1)  “fair trading” legislation (primarily, the Trade Practices Act 1974(Cth) and equivalent State and Territory statutes; these have recently been consolidated into the Australian Consumer Law);

(2)  proportionate liability (Federal, State and Territory); and

(3)  “security of payment” reforms designed to enforce rights to payment across the contractual chain (State and Territory).

This paper looks at the origins of each of these legislative schemes, overviews their provisions and their impact on the practice of construction law in Australia, and outlines some of the issues that the legislation has spawned. In particular, the paper highlights the differences between legislation in the different jurisdictions, notwithstanding that the local variants of each scheme were essentially promulgated to correct the same mischief.

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