Government community service contracts : restraining abuse of power

The use of grant contracts to deliver community services is now a significant feature of all Australian government administrations. These contracts are the primary instrument governing the provision of such services to citizens and are largely outside the usual parliamentary review mechanisms and constraints. This article examines the extent of the erosion of fundamental constitutional principles facilitated by the use of private contracts, by applying the principles used in scrutiny of delegated legislation to standard form federal and State community service contracts. It reveals extensive executive power which, if the relationship were founded in legislative instruments rather than in private contract, would have to be justified to Parliament at least and possibly not tolerated.

Phase two of the National Credit Reforms : examining the regulation of payday lenders

This study seeks to analyse the adequacy of the current regulation of the payday lending industry in Australia, and consider whether there is a need for additional regulation to protect consumers of these services. The report examines the different regulatory approaches adopted in comparable OECD countries, and reviews alternative models for payday regulation, in particular, the role played by responsible lending. The study also examines the consumer protection mechanisms now in existence in Australia in the National Consumer Credit Protection Act 2009 (Cth) (NCCP) and the National Credit Code (NCC) contained in Schedule 1 of that Act and in the Australian Securities and Investments Commission Act 2001 (Cth).

Supply chain sustainability : a relationship management approach moderated by culture and commitment

This paper explores the nature of relationship management on construction projects in Australia and examines the effects of culture, by means of Schwarz’s value survey, on relationships under different contract strategies. The research was based on the view that the development of a sustainable supply chain depends on the transfer of knowledge and capabilities from the larger players in the supply chain through collaboration brought about by relationship management. The research adopted a triangulated approach in which quantitative data were collected by questionnaire, interviews were conducted to explore and enrich the quantitative data and case studies were undertaken in order to illustrate and validate the fi ndings. The aim was to investigate how values and attitudes enhance or reduce the incorporation of the supply chain into the project. From the research it was found that the degree of match and mismatch between values and contract strategy impacts commitment and the engagement and empowerment of the supply chain.

Determining the appropriate proportion of owner-provided design in design-build contracts - a content analysis approach

The Request For Proposal (RFP) with the design‐build (DB) procurement arrangement is a document in which an owner develops his requirements and conveys the project scope to DB contractors. Owners should provide an appropriate level of design in DB RFPs to adequately describe their requirements without compromising the prospects for innovation. This paper examines and compares the different levels of owner‐provided design in DB RFPs by the content analysis of 84 requests for RFPs for public DB projects advertised between 2000 and 2010 with an aggregate contract value of over $5.4 billion. A statistical analysis was also conducted in order to explore the relationship between the proportion of owner‐provided design and other project information, including project type, advertisement time, project size, contractor selection method, procurement process and contract type. The results show that the majority (64.8%) of the RFPs provide less than 10% of the owner‐provided design. The owner‐provided design proportion has a significant association with project type, project size, contractor selection method and contract type. In addition, owners are generally providing less design in recent years than hitherto. The research findings also provide owners with perspectives to determine the appropriate level of owner‐provided design in DB RFPs.

Analysis of selection criteria for design-builders through the analysis of Request for Proposals (RFPs)

Selecting an appropriate design-builder is critical to the success of DB projects. The objective of this study is to identify selection criteria for design-builders and compare their relative importance by means of a robust content analysis of 94 Request For Proposals (RFPs) for public DB projects. These DB projects had an aggregate contract value of over US$3.5 billion and were advertised between 2000 and 2010. This study summarized twenty-six selection criteria and classified into ten categories, i.e.: price, experience, technical approach, management approach, qualification, schedule, past performance, financial capability, responsiveness to the RFP, and legal status in descending order of their relative importance. The results showed that even though price still remains as the most important selection category, its relative importance declines significantly in the last decade. The categories of qualification, experience, past performance, by contrast, have been becoming more important to DB owners for selecting design-builders. Finally, it is found that the importance weighting of price in large projects is significantly higher than that in small projects. This study provides a useful reference for owners in selecting their preferred design-builders.

Key competences of design-build clients in China

Purpose-- DB clients play a vital role in the delivery of DB system and the clients’ competences are critical to the success of DB projects. Most of DB clients, however, remain inexperienced with the DB system. This study, therefore, aims to identify the key competences that DB clients should possess to ensure the success of DB projects in the construction market of China. Design/Methodology/Approach -- Five semi-structured face-to-face interviews and two rounds Delphi questionnaire survey were conducted in the construction market of China to identify the key competences of DB clients. Rankings have been assigned to these key competences on the basis of their relative importance. Findings-- Six ranked key competences of DB clients have been identified, which are, namely, (1) the ability to clearly define project scope and objectives; (2) financial capacity for the projects; (3) capacity in contract management; (4) adequate staff or consulting team; (5) effective coordination with DB contractors and (6) experience with similar design-build projects. Calculation of Kendall’s Coefficient of Concordance (W) indicates a statistically significant consensus of panel experts on these top six key competences. Practical implications—Clients should clearly understand the competence requirements in DB projects and should assess their DB capability before going for the DB option. Originality/Value-- The examination of DB client’s key competences will help the client deepen the understanding of the DB system. DB clients can also make use of the research findings as guidelines to improve their DB competence.

Identification of key competences of DB clients in the construction market of China

The design-build system has been demonstrated as an effective delivery method and gained popularity worldwide. Although there are an increasing number of clients adopting DB method in China, most of them remain inexperienced with method. The objective of this study is therefore to identify the key competences that a client or its consultant should possess to ensure the success of DB projects. Face-to-face interviews and a two-round Delphi questionnaire survey were conducted to find the following six key competences of clients, which include the (1) ability to clearly articulate project scope and objectives; (2) financial capacity for DB projects; (3) capability in contract management; (4) adequate staff or consulting team; (5) effective coordination with contractors and (6) experience with similar DB projects. This study will hopefully provide clients with measures to evaluate their DB competence and further promote their understanding of DB system in the PRC.

Locally oriented crime prevention and the “partnership approach” : politics, practices and prospects

Why have multi-agency or "partnership" approaches to crime prevention and community safety been reported internationally with unfavorable results? Can groups and individuals from disparate government and non-government sectors work together to reduce or prevent crime? This article will address these and other questions by using developments in Belgium as its case study. In 1992, Belgium launched its "safety and crime prevention contracts", a series of locally based crime prevention initiatives which have attempted to contract federal, regional and local governments to a range of social and police oriented crime prevention endeavors. Traces the development of the Belgian crime prevention contracts and examines the difficulties experienced with "multi-agency crime prevention" and suggests that much of the political rhetoric in Belgium calling for local, community and intersectorial "partnerships" has, like several other countries including England and Wales, Canada, Australia and New Zealand, lacked clear practical expression. However, some promising initiatives indicate that this prevention approach may be capable of producing effective crime prevention and community safety outcomes. Further research is needed to describe these initiatives and analyze the conditions under which they are developed.

Legal liability for carbon capture and storage in Australia : where should the losses fall?

This article presents a critical analysis of the current and proposed CCS legal frameworks across a number of jurisdictions in Australia in order to examine the legal treatment of the risks of carbon leakage from CCS operations. It does so through an analysis of the statutory obligations and liability rules established under the offshore Commonwealth and Victorian regimes, and onshore Queensland and Victorian legislative frameworks. Exposure draft legislation for CCS laws in Western Australia is also examined. In considering where the losses will fall in the event of leakage, the potential tortious and statutory liabilities of private operators and the State are addressed alongside the operation of statutory protections from liability. The current legal treatment of CCS under the new Australian Carbon Pricing Mechanism is also critiqued.

Economic fluctuations and productivity in the Malaysian construction sector

Growth in productivity is the key determinant of the long-term health and prosperity of an economy. The construction industry being one of major strategic importance, its productivity performance has a significant effect on national economic growth. The relationship between construction output and economy has received intensive studies, but there is lack of empirical study on the relationship between construction productivity and economic fluctuations. Fluctuations in construction output are endemic in the industry. In part they are caused by the boom and slump of the economy as a whole and in part by the nature of the construction product. This research aims to uncover how the productivity of construction sector is influenced in the course of economic fluctuations in Malaysia. Malaysia has adopted three economic policies – New Economic Policy (1971-1990), National Development Policy (1991-2000) and the National Vision Policy (2001-2010) since gaining independence in 1959. The Privatisation Master Plan was introduced in 1991. Operating within this historical context, the Malaysian construction sector has experienced four business cycles since 1960. A mixed-method design approach is adopted in this study. Quantitative analysis was conducted on the published official statistics of the construction industry and the overall economy in Malaysia between 1970 and 2009. Qualitative study involved interviews with a purposive sample of 21 industrial participants. This study identified a 32-year long building cycle appears in 1975-2006. It is superimposed with three shorter construction business cycles in 1975-1987, 1987-1999 and 1999-2006. The correlations of Construction labour productivity (CLP) and GDP per capita are statistically significant for the 1975-2006 building cycle, 1987-1999 and 1999-2006 construction business cycles. It was not significant in 1975-1987 construction business cycles. The Construction Industry Surveys/Census over the period from 1996 to 2007 show that the average growth rate of total output per employee expanded but the added value per employee contracted which imply high cost of bought-in materials and services and inefficient usage of purchases. The construction labour productivity is peaked at 2004 although there is contraction of construction sector in 2004. The residential subsector performed relatively better than the other sub-sectors in most of the productivity indicators. Improvements are found in output per employee, value added per employee, labour competitiveness and capital investment but declines are recorded in value added content and capital productivity. The civil engineering construction is most productive in the labour productivity nevertheless relatively poorer in the capital productivity. The labour cost is more competitive in the larger size establishment. The added value per labour cost is higher in larger sized establishment attributed to efficient in utilization of capital. The interview with the industrial participant reveals that the productivity of the construction sector is influenced by the economic environment, the construction methods, contract arrangement, payment chain and regulatory policies. The fluctuations of construction demand have caused companies switched to defensive strategy during the economic downturn and to ensure short-term survival than to make a profit for the long-term survival and growth. It leads the company to take drastic measures to curb expenses, downsizing, employ contract employment, diversification and venture overseas market. There is no empirical evidence supports downsizing as a necessary step in a process of reviving productivity. The productivity does not correlate with size of firm. A relatively smaller and focused firm is more productive than the larger and diversified organisation. However diversified company experienced less fluctuation in both labour and capital productivity. In order to improve the productivity of the construction sector, it is necessary to remove the negatives and flaws from past practices. The recommended measures include long-term strategic planning and coordinated approaches of government agencies in planning of infrastructure development and to provide regulatory environments which encourage competition and facilitate productivity improvement.

Supreme Court Decision Results in a Change to Standard Contracts

The decision of Dalton J in Lai v Soineva [2011] QSC 247 has resulted in a change in the latest versions of the Real Estate Institute of Queensland (REIQ) contracts.

Unlocking risk allocation and equitable conversion : reform of the passing of risk in the sale of land

The principles relating to the passing of risk under a contract for the sale of real property would seem to have been long settled. The rule under the general law is that the risk of loss of the subject matter under a contract for the sale of real property passes to the buyer upon the creation of a valid and binding contract. This article considers the origin of that rule, how it developed with the growth of equity, and advances the view that it is anomalous in a modern context of property dealings. In doing so, the article adverts to the variety of statutory mechanisms used to subvert the rule, few of which are of practical value. It concludes that the rule is outmoded in many respects and suggests a number of reforms which might be implemented nationally to bring consistency and simplicity to the issue of damage or destruction of improvements which are the subject of a land contract.

Unfair terms in residential land contracts : will the Australian consumer law improve a buyer’s bargaining position?

The prohibition on unfair contract terms in standard form consumer contracts has the potential to significantly impact on the terms of contracts for the sale of land. The definition of ‘consumer contract’ includes contracts for the sale or grant of an interest in land to an individual wholly or predominantly for personal or domestic use. Therefore, a contract for the purchase of a residence for personal occupation by the buyer, as opposed to a purchase for investment purposes, will be a consumer contract potentially attracting the application of the unfair terms provisions. Significant consumer protection mechanisms already exist in most state jurisdictions requiring disclosure of relevant matters to the buyer and providing remedies for the provision of misleading conduct. Minimal evidence of unfair terms in land contract was presented to the Productivity Commission Inquiry into the Australian Consumer Policy Framework raising the question as to whether there is an identified problem of unfair terms in real estate contracts and if so, whether the same economic and ethical rationales justify regulatory intervention. This article examines what effect if any the introduction of the unfair contract provisions will have on the enforcement of residential land contracts and the viability of previously accepted conditions if challenged as being “unfair terms”. The article concludes that despite the existence of several potentially unfair terms in some land contracts, the intervention of the rules of equity to overcome perceived hardship or unfairness to buyers from strict enforcement of terms means the unfair terms provisions are only likely to operate on terms untouched by those principles. In the authors’ view the scope for operation of the unfair terms provisions will be limited to terms untouched by the principles of equity and consumer protection legislation making it unlikely that there will be any significant realignment of the contractual obligations and rights of buyers and sellers of land.