In Short
- Familiarise yourself with Australia’s key construction laws to ensure compliance and avoid legal pitfalls.
- Clearly outline contractual obligations, terms, and conditions to protect your business and minimise disputes.
- Implement effective strategies like mediation and arbitration to efficiently resolve conflicts and maintain project continuity.
Tips for Businesses
Always use comprehensive, legally reviewed contracts for your construction projects. Stay updated with relevant legislation and seek professional legal advice to navigate complexities, ensure compliance, and protect your business from potential disputes.
Whether you are building and planning a residence, a block of apartments, an office building, or a shopping centre, you should be aware of your rights and obligations. This article provides an introduction to construction law in Australia with a focus on important legal and commercial considerations.
What is Construction Law?
Construction law in Australia is a broad and specialised area. Your lawyer’s involvement will range from activities such as:
- contract drafting and advice;
- tenders and negotiations;
- joint venture agreements;
- dispute resolution and litigation; and
- contractual claims assistance.
A combination of federal, state, and local (council) laws will affect each aspect of a construction project.
The National Construction Code
The National Construction Code (NCC) is a code issued by the Australian Building Codes Board (ABCB) that outlines the minimum requirements for the design and construction of new buildings. It lays particular emphasis on the health, safety, amenity and sustainable design of buildings. It contains the Building Code of Australia in Volumes 1 and 2 (BCA) and the Plumbing Code of Australia in Volume 3.
The current version is the NCC 2019. All States and Territories have adopted the NCC 2019.
Continue reading this article below the formState and Territory Legislation
Each state also has its respective laws and regulations that govern the building and construction industry. Among other things, these laws and regulations cover areas such as:
- licences;
- registration;
- contract formalities;
- insurance; and
- statutory implied warranties in contracts.
Below is a summary of the applicable legislation and regulations in each state. There may be other legislation not included in the table that may affect your particular circumstances. You may want to speak to your lawyer if you are unsure about which legislation applies.
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State |
Legislation |
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New South Wales |
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Victoria |
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Queensland |
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Australian Capital Territory |
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Western Australia |
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South Australia |
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Northern Territory |
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Tasmania |
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Work Health and Safety (WHS)
The Australian construction industry operates under a complex framework of Work Health and Safety (WHS) laws. While most states and territories have harmonised their legislation, Victoria maintains a separate system.
Each jurisdiction’s WHS Act establishes performance-based obligations, supported by detailed regulations and industry-specific Codes of Practice. These laws adopt a risk management approach to safety, particularly crucial in the high-risk construction sector.
Key responsibilities fall on the ‘person conducting a business or undertaking’ (PCBU), typically the principal contractor in construction projects.
PCBUs must:
- Manage and control WHS risks
- Secure construction sites from unauthorised access
- Prepare, review, and communicate WHS management plans
- Ensure compliance with safe work method statements
For ‘high-risk construction work’, additional duties apply. The construction industry’s WHS framework aims to mitigate the sector’s inherent risks, promoting a safer work environment. Compliance with these regulations is mandatory, with significant penalties for breaches.
Planning and Environmental Laws
The construction industry in Australia must adhere to various environmental obligations and legislation.
Each state and territory has its own set of environmental laws and regulations:
- New South Wales: Environmental Planning and Assessment Act 1979.
- Victoria: Environment Protection Act 2017.
- Queensland: Environmental Protection Act 1994.
- Western Australia: Environmental Protection Act 1986.
- South Australia: Environment Protection Act 1993.
- Tasmania: Environmental Management and Pollution Control Act 1994.
- Australian Capital Territory: Environment Protection Act 1997.
- Northern Territory: Environment Protection Act 2019.
State and local planning legislation provides the framework for regulating development, while environmental laws have a significant impact on construction projects. These laws encompass various aspects of environmental protection and management, including:
- environmental impact assessments;
- native vegetation protection;
- heritage conservation;
- water management and conservation;
- waste management and disposal; and
- energy efficiency requirements.
Security of Payment
Each state also has its respective security of payment legislation. The security and payment legislation applies primarily to contractors and subcontractors. It ensures that they are paid promptly for the construction work they perform. The legislative framework provides mechanisms for the recovery of money without the need to resort to litigation.
The legislation described above is by no means a comprehensive list of the construction law that will apply. Depending on the particular issue at hand, many other laws may come into play, such as workplace health and safety, the Fair Work Act, and local government planning and environmental laws. There is also a range of common law principles that affect the interpretation of construction contracts and legislation.
Key Takeaways
The legislation which you must comply with will depend on the State or Territory you are in and the type of construction work that you are involved in. You will also need to consider that you are complying with laws relating to work health and safety, fair work, zoning and environmental planning. The relevant legislation sets out the different requirements for the type of work involved and the standards you must comply with and payment requirements to contractors and subcontractors. Where you are carrying out any kind of construction work, you must ensure that you are complying with any licencing requirements and confirm that the licence you hold allows for you to carry out that work.
If you need help with your construction law matter, our experienced construction lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
The requirements vary across different states but generally, it will cover building or construction work, plumbing, demolition, industrial design, renovations, decorations or protective treatment. You will need to consult with your lawyer to identify precisely the legislation that is involved with your particular circumstance.
Depending on the state or territory you are in, you will either need to obtain a licence or be registered to carry out building work for which you will need to have obtained the relevant and proper training and qualifications. If you carry out the type of work covered by the legislation without the proper licence or registration, you could be fined.
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