Australia: Corrs High Vis: Episode 26 – Murray Report reviewing the national security of payment laws

In our latest Corrs High Vis podcast, we take a closer look at the recently released Murray Report reviewing the national security of payment laws. Andrew McCormack, Wayne Jocic and Sam Woff sit down with Megan Sharkey to discuss some of the most important recommendations and their likely impact on the construction industry.

The podcast series, brought to you by Corrs, offers analysis and insights to help you make smarter decisions.


Megan Sharkey, Lawyer, Corrs Chambers Westgarth Andrew McCormack, Partner, Corrs Chambers Westgarth Sam Woff Senior Associate, Corrs Chambers Westgarth Wayne Jocic, Consultant, Corrs Chambers Westgarth

Megan: We are here today to discuss the recently released review of security of payment laws. The Commonwealth Government engaged a Member of the Order of Australia, John Murray, to review security of payment legislation across Australia. In doing so, Mr Murray met more than 70 stakeholders. The result is an exhaustive report that's just shy of 400 pages long.

I am Megan Sharkey, a lawyer in the Construction Team here at Corrs and I am here with Partner, Andrew McCormack, Senior Associate, Sam Woff and Consultant, Wayne Jocic. We'll be discussing some of the most important recommendations and debating their effect on the construction industry.

Wayne, perhaps you could start by giving your overall impressions of the report.

Wayne: Thanks I am glad that you're asking for overall impressions and not a commentary on all the 86 recommendations. I don't think that would be good for anyone. There is one recommendation though that everyone needs to know. So the overarching recommendation that Mr Murray makes is that the legislation be harmonised. So essentially there be the same legislation across the jurisdictions and that it follow broadly the east coast model and in particular most of the recommendations suggest following something like the current form of the New South Wales legislation. So that's really their headline finding – headline recommendation and that's the one we need to know about.

There are lots of small improvements, mostly fairly uncontroversial ones. I think Sam is going to talk about some of those a bit later. But of course this is a really difficult process and Mr Murray has managed that very well. He's had to make some compromises here and there. In some cases there's some doubling up. You have, for example, roles still for authorised nominating authorities plus a government regulator. You have the possibility of seeking a review of adjudications and also still the potential for judicial review where there has been a jurisdictional error. So there are still some complexities but essentially what Mr Murray has done is really to handle a terribly difficult task, quite well.

Megan: one of the concerns about the security of payment legislation is of course, its complexity. Sam, what has the review recommended to tackle this problem?

Sam: Thanks Megan. Yes the review tackles this problem kind of at two levels: at a macro level as we've heard from Wayne, there's going to be an attempt to harmonise all the various jurisdictions into one national scheme which can only assist in reducing the complexity. Quite a lot of the complexity at present is tied up in the fact that you have different legislative schemes in different States. So the effort to bring that together into one harmonised approach, can only be a good thing.

At a more micro level, there's some more spring cleaning which has been done to get rid some of the dusty corners of the existing legislation. Some things are completely done away with where they don't serve a proper purpose. For instance, the Victorian excluded amounts regime has been done away with; the concept of reference dates has been recommended to be abolished; and we're going to get a consistent national uniform Christmas shut down period where the timeframes in the acts don't apply. So some appropriate spring cleaning there.

There are a couple of areas where perhaps Mr Murray on my reading might have been a bit over zealous in terms of trying to simplify things. Sometimes that appears to have come at the cost of potentially some fairness in the effort to sort of achieve a more simplified process. Some of the protections particularly to the respondent, appear to have been done away with. But I know Andrew you wanted to talk about that a little bit more, so I won't say anything further about it.

Megan: Andrew, I know there's a comment you wanted to make in relation to the recommendation that the dual track system in Queensland not be adopted in any national reforms. Do you think that the report strikes the right balance between fairness and simplicity?

Andrew: Well thanks Megan. I think the answer to the question is, and maybe I am bias being from Queensland, but it is probably not the report is recommending a one size fits all approach to security of payment and I am not sure that always produces the right outcome. So to put in a very stark example, you would have the same process and the same timeframes to respond to an SOP claim for say, a $1000 as you would if the claimed amount was $100 million and typically in the latter case the volume of material and the complexity of the arguments and issues will be far more significant in a large value claim. That being the case I think that the system that Queensland introduced, although that has been paired back somewhat by the recently introduced Building Industry Fairness Act. But in Queensland we still do have a two tier system, a standard payment claim which is anything $750,000 or less and then above $750,000 you have got complex payment claims and there is a longer time period to respond each step in the adjudication process has a longer time and ability to have extensions and that allows a better and more considered response and a better and more considered adjudicators view on the point. So I think that actually the balance between fairness and simplicity isn't quite right and there will be some room for what is affectionally known as the 'dual track system'.

Megan: The role of the adjudicator is one central topic we haven't fully discussed yet. Sam what does Mr Murray recommend in respect of adjudicators?

Sam: Thanks Megan. Yes Mr Murray does make several recommendations in relation to adjudicators. Mainly to improve perception as to their quality and to remove lingering doubts as to their neutrality in relation to deciding their disputes. Firstly, there is a recommendation that adjudicators be more heavily regulated in that they have to be registered with a authority, they have to undergo training, and they have to be graded, and secondly, there's some suggestions in the report that adjudicators be nominated through a more impartial process. Whether that's by the parties nominating the adjudicator equally or whether there is some yet to be determined authority that actually makes the appointment and I think in that Mr Murray is trying to move away from the current model. In some of the states where really it comes down to one of the parties quite often the claimant to make the nomination for who the adjudicator is going to be. So I think that those are all positives steps in the right direction because it's going to increase the quality of the decisions from the adjudicators and also improve perceptions that they are unbiased and that can only be a good thing for the whole procedure.

Megan: Andrew if I can come back to you. Are there any elements of the proposed recommendations which you think would be particularly welcome?

Andrew: Yes I came across some more poo pooing the report earlier on when I was talking about the dual track system. But there are some recommendations that are to be applauded in my view. One of them is to ethnicate in New South Wales and now Queensland, is to reintroduce the requirement to identify a payment claim as being a claim under the legislation in order to bring the payment claim under the structure of the legislation. I would say in New South Wales it's been the case for the past few years and it will be case shortly in Queensland, that you don't need to identify your payment claim as one being made under the Act if it satisfies a very liberal definition of what a payment claim is, the statutory regime and statutory timeframes and importantly the statutory consequences of not meeting those timeframes will apply. This means that under those eastern jurisdictions at the moment every claim for payment under a construction contract is a security of payment claim which means as a principle or a head contractor dealing with multiple subcontractor payment claims you have to treat every payment claim as a live grenade. I would suggest that taking the step of actually wanting to bring yourself under the jurisdiction of the Act is not a tremendous amount to ask but could actually be very useful for the relationship between contractors and their clients. Another positive development which is instigated in New South Wales at the present time, not in Queensland, is the requirement to have a supporting statement confirming that you have paid all of your subcontractors included as part of your payment claim. I think that's a very good idea. It means that there is a degree of rigor required when putting the payment claim together and it helps promote the right behaviours which are to ensure that subcontractors' payments are properly made and are included in the payment claims that are being submitted up the contractual chain.

Megan: So Wayne. Now we know a little about the report. The next question is – when will it be implemented?

Wayne: Well that's not an easy question and frankly we don't know the answer to that. So where we are now is that we have a shiny fancy new report, but there are a couple of challenges. One of those challenges is that the Government hasn't yet endorsed all or any of these recommendations. So we don't quite know what the Government's position is and I am sure we will find out soon. The second issue is more of a technical challenge, and that's working out how we would actually implement this harmonised legislation. So a couple of ways you could do it. You could find the Commonwealth essentially going it alone relying on its corporations power under the Constitution. The only problem is that not every party involved on a construction project is a corporation and so there will be some gaps. Maybe those parties won't be properly regulated, maybe they will be regulated under existing State legislation. Doesn't seem a perfect solution. A better way of doing it would be if the States and Territories in some way agreed. And if they can agree there are some in one or other technical ways of ensuring that we have the same legislation but that does require all those jurisdictions to agree and we don't yet know whether that will be the case. So what is that moment is – we have an exciting report, a promising report, and we need to see what happens with it, how the report is actually going to be implemented, and it may well be that we will be making some more podcasts along the way.

Megan: I think this nicely rounds up the review of security of payment laws. Thank you Andrew, Sam and Wayne for taking us through the review and thank you to our listeners for tuning in. Until our next High Vis Podcast - goodbye.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions