Melbourne Law School - Research Publications
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ItemHome is Where the Heart(ache) is: Building a Regulatory Regime for Residential Construction Which More Effectively Meets Community Expectations for Occupant Health and Safety( 2019)This thesis examines the ability of legal regulation to address the threat posed by residential construction defects to the health and safety of dwelling occupants. It focuses on the experience in England and the Australian state of Victoria. In these jurisdictions, defects are endemic and their consequences occasionally catastrophic. The thesis uses regulatory theory - especially, the pluralist perspectives of 'responsive' and 'smart' regulatory scholarship - as the touchstone for its analysis. This analysis allows the thesis to make several novel contributions to the ongoing consideration of the vital societal problem posed by residential construction defects. These include, principally, the thesis's establishment of a regulatory goal that dwellings protect occupants' health and safety during the life of the building, and its critique of the effectiveness of the existing regulatory regimes in England and Victoria in achieving that goal. The thesis synthesises community expectations in order to identify this regulatory goal. It proposes that an effective regulatory regime to achieve this goal should incorporate six elements: information, responsibility, standards-setting, competence, quality assurance, and rectification. It advocates deployment of a pluralist mix of tools, appropriate to the jurisdiction, in order for those elements to operate effectively within the regime. The thesis also analyses the regulatory regimes in England and Victoria, as they stood at 31 December 2018 (including reforms proposed to those regimes as at that date). It concludes that, whilst these regimes are broadly aligned with achievement of the regulatory goal, further reforms are necessary in order to entrench an appropriately-robust commitment to the paramountcy of the goal amongst policy-makers, the construction industry, and the broader community.
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ItemStandard forms of contract in the Australian construction industry: Research report(Melbourne Law School, 2014)
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Item"How is that Even Possible?" Raising Construction Regulation from the Ashes of Grenfell Tower(Informa Intelligence, 2018-03-28)The paper explores the challenge for construction law regulation identified in the wake of the Grenfell disaster, and similar residential building fires around the world. At its heart, the challenge is to devise effective legal means by which dwellings can be built, and maintained, so that they remain safe for their residents. Achievement of this ambition may appear straightforward; however, the complex interplay of commercial, technical and legal pressures involved in modern urban developments means that the regulatory regime needs to be carefully calibrated. Matthew Bell examines the approach taken to re-thinking the regulatory system for residential building by reviews which have been instigated as a result of these fires, in the UK and Australia. Prominent amongst these reviews is that of Dame Judith Hackitt in the UK, which published its Interim Report in December 2017. This Report shows a clear intention towards an holistic reassessment of measures and philosophies which underpin the current regulatory regime, including performance-based specification. As the paper notes, a similar willingness to reassess regulatory strategies has been shown in Australia, with significant reforms recently enacted or in prospect.
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ItemInternational construction law as a 'Private Legal System': emerging from the 'primordial soup' in the search for coherence(The Romanian Society of Construction Law, 2016)
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ItemNo Preview AvailableVBA v Andriotis: Is interstate freedom of movement a threat to quality assurance in Australia’s construction industry?( 2019)In Victorian Building Authority v Andriotis, the full bench of the High Court of Australia found unanimously that the Victorian registration authority was precluded from having regard to the "good character" requirements of the Victorian Building Act in deciding whether to allow a NSW-registered building practitioner to be registered in Victoria. This note acknowledges that this result is inevitable given the primacy of the (Commonwealth) mutual recognition principles over state-based regimes. However, the tendency of those principles to allow (indeed, to require) cross-state registration based upon less rigorous standards in the first state is of concern given current lack of confidence in quality assurance across the Australian construction industry.
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ItemNo Preview AvailableDon't Overlook Residents' Role in Residential Building Safety(The Conversation Media Group, 2019)For many of us, the reality of Australian homes now sits many storeys up in the sky. High-rise apartment buildings have sprouted across the nation’s cities. In recent weeks – on Christmas Eve at the Opal Tower building in Sydney and on February 4 at the Neo200 Building in Melbourne – that reality has turned into the nightmare for hundreds of residents of being turned out of their homes with little more than the clothes they were wearing.
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ItemSecurity of Payment in the Construction Industry: Does International Experience Provide a Crystal Ball for North America?(Sweet and Maxwell, 2018)Over the past two decades, more than a dozen jurisdictions around the world have enacted legislative reform programs to promote ‘security of payment’ within their construction industries. This article examines the reform processes currently underway in North America, focusing on those recently implemented in Ontario, Canada. It then draws on the experience in several other jurisdictions which have had security of payment legislation in place for some time (the UK, Ireland, the Australian states and territories, New Zealand, Malaysia), along with proposed legislation in Mauritius, in order to distil lessons which can be applied for the benefit of the reform programs in North America.
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ItemSecurity of Payment in the Construction Industry: Does International Experience Provide a Crystal Ball for North America?(Society of Construction Law North America, 2018)Over the past two decades, more than a dozen jurisdictions around the world have enacted legislative reform programs to promote ‘security of payment’ within their construction industries. There are two linked foundations to these reforms: ensuring prompt payment for work done, and rapid interim adjudication of disputes over the amount of payment due for that work. This paper examines the reform processes currently underway in North America, focusing on those recently implemented in Ontario, Canada. It then draws on the experience in several other jurisdictions which have had security of payment legislation in place for some time (the UK, Ireland, the Australian states and territories, New Zealand, and Malaysia), along with proposed legislation in Mauritius, in order to distil lessons which can be applied for the benefit of the reform programs in North America. These include the need for clarity and, to the extent possible, cross-border consistency in the drafting and application of the elements of the schemes.
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Item"How is that Even Possible?" Raising Construction Regulation from Grenfell Tower(Informa Business Intelligence, 2018)This article explores the challenge for construction law regulation which has been identified in the wake of the 2017 Grenfell Tower disaster and similar residential building fires around the world. Specifically, it seeks to contribute to ongoing deliberations for addressing that challenge consonant with the Hackitt Review’s stated intentions to harness regulatory theory perspectives and international experience, especially that from Australia.