Дисертації з теми "Construction industry – law and legislation – australia"

The construction industry poses a number of challenges to those working in it. One important challenge is that the industry is dependent upon human interactions in the management of building projects. In this environment it is important for those who manage the projects to deal with intricate relationships and to consider the emotions, interactions and various types of reasoning that lie behind the actions and decisions taken by the participants in the construction process. The issue for researchers is to gain a better understanding of the variables that affect the actions of the participants in this process. Such research demands sensitivity to the values, attitudes and behavior developed by the different occupational groupings. These factors according to Edgar Schein define the culture of a professional group. This research was conceived on the belief that the professionals in the construction industry brought to bear their own professional culture on the industry. It was necessary to have a better understanding of this culture in order to be able to resolve disputes that occur in the construction process. That is the impact of culturally deternlined values, attitudes and behavior of these professional groups. Therefore, this research is aimed at investigating the professional cultures of the participants who come together in a construction project. The question posed was whether they shared a culture or had differences, and if differences existed whetherthese differences had an effect on the reactions of each of the groups to disputes and their resolution. A survey was carried out among professional groups in Australia and Sri-Lanka and the survey data from both countries were analyzed using statistical tests. The results show that professional groups share similarities in professional culture as well as differences. It also showed that these cultural differences created an adversarial atmosphere among construction project participants. It was also found that introducing a party outside of the usual professional groups would be beneficial in the resolution process. Respondents were of the opinion that the third party outside of the construction team could be a lawyer. This type of research is still new within the field of construction. The contributions of this work are to link professional culture and conflict and give some indication how such conflict could be addressed. In this context by identifying the values attitudes and behavior of professional groups the subject of conflict and disputes could be beneficially addressed through professional education.

The construction industry poses a number of challenges to those working in it. One important challenge is that the industry is dependent upon human interactions in the management of building projects. In this environment it is important for those who manage the projects to deal with intricate relationships and to consider the emotions, interactions and various types of reasoning that lie behind the actions and decisions taken by the participants in the construction process. The issue for researchers is to gain a better understanding of the variables that affect the actions of the participants in this process. Such research demands sensitivity to the values, attitudes and behavior developed by the different occupational groupings. These factors according to Edgar Schein define the culture of a professional group. This research was conceived on the belief that the professionals in the construction industry brought to bear their own professional culture on the industry. It was necessary to have a better understanding of this culture in order to be able to resolve disputes that occur in the construction process. That is the impact of culturally deternlined values, attitudes and behavior of these professional groups. Therefore, this research is aimed at investigating the professional cultures of the participants who come together in a construction project. The question posed was whether they shared a culture or had differences, and if differences existed whetherthese differences had an effect on the reactions of each of the groups to disputes and their resolution. A survey was carried out among professional groups in Australia and Sri-Lanka and the survey data from both countries were analyzed using statistical tests. The results show that professional groups share similarities in professional culture as well as differences. It also showed that these cultural differences created an adversarial atmosphere among construction project participants. It was also found that introducing a party outside of the usual professional groups would be beneficial in the resolution process. Respondents were of the opinion that the third party outside of the construction team could be a lawyer. This type of research is still new within the field of construction. The contributions of this work are to link professional culture and conflict and give some indication how such conflict could be addressed. In this context by identifying the values attitudes and behavior of professional groups the subject of conflict and disputes could be beneficially addressed through professional education.

Thesis (MTech (Construction Management))--Cape Peninsula University of Technology, 2017.
Delays are frequent and recurring in construction projects, mostly in developing countries. Several factors pertaining to modes of operation in the local construction industry contribute to construction delays. Contractual claims are integral and an important feature of construction project's life. Often times, delay-related contractual claims in construction projects is a controversial issue that often leads to disputes and conflicts between contractual parties due to its ambiguity and complexity. Literature have shown over the last decade a range of problems that have consistently resulted in construction delay and significant costs to all contractual parties due to contractual claims in almost all types of construction projects. Therefore, to achieve more time efficiency on construction projects, comprehensive studies on common problems resulting in routine delays due to contractual claims is essential. Such studies need to pinpoint the most relevant causes of delay that have to be monitored carefully in order to avoid the construction delays. Thus, this study adopted a quantitative research method. Closed ended and open ended questions were designed in the quantitative instrument for the quantitative survey. Descriptive and Principal Component Analysis was employed for data analysis to develop an operational framework for evaluating delay related claims in the South African construction industry. Findings from the analysis of data revealed several factors through which, when appropriately evaluated will reduce the incidence of contractual claim to minimum if not completely eliminated in construction project. The study has found that delay-related claims are increasingly emerging and have become the most common and costly problem in construction projects which not only deny the client timely access to the completed facility but disrupt the overall performance of the building project. This study also concludes that the contractual claims that often lead to dispute during execution of building projects are; Change order claim, Variation order claim, Cost and expense claims and Dayworks claim. Therefore, evaluation of these claims must be given careful assessment during the construction phase of a building project to forestall its attendant consequence on project performance. Inconsistencies in the operational dealings with contractual claims in the South African construction industry showed that; release of payment emanating from claims, quality of management and design coordination, nonavailability of specified materials and change in micro economic policy are the most significant in evaluation factors which must be considered in evaluation of accurate and undisputed contractual claims. This study also affirmed that the three principal components that lead to claim and dispute when combined explained 49% of the total variance. Also, it was concluded that arbitration is most appropriate for dispute due to; shortage of materials, claims in fluctuation of the materials price, physical environmental consideration, and conflict of interest among the project team. Litigation is most appropriate to resolve dispute due to access to the construction site. While mediation is most suitable for dispute due to; inability of the client to understand design, the choice of the procurement process, delay in release of payment emanating from claims, lack of prompt delivery of materials by the suppliers, interference with utility lines and extreme weather condition. Lastly, Negotiation is most suitable for dispute arisen from constructability of the design and non-availability of specified materials.

Since 1976 public agencies in Oregon have been allowed to select construction contractors using a "qualification" based competition instead of the more typical lowest responsible bid or Design-Bid-Build (DBB) basis. Since 1985, at least 136 such selections, commonly known as CM/GC for Construction Manager/General Contractor, have been made. The results of this policy have not previously been analyzed. This research compares these selection methods, seeking to answer the following questions: Does the CMl/GC method result in projects that differ from DBB projects regarding cost and schedule control? Are CMl/GC projects more efficient than DBB projects, where efficiency is defined as the data envelopment analysis (DEA) technical efficiency score? Does efficiency depend on an interaction between project type and the selection method? How do project stakeholders evaluate the benefits and drawbacks of the two selection methods? How do projects compare when the only apparent difference between them is the selection method? To answer these questions, we identified 407 Oregon public building construction projects and obtained a variety of data, including cost and schedule results, for 215 jobs (111 CMl/GC and 104 DBB). We analyzed the data several ways, including statistical analysis, DEA, and various qualitative methods. Results: There was no statistically significant difference between the CMl/GC and DBB projects regarding cost and schedule control. The DEA technical efficiency scores showed that CMl/GC projects outperformed the DBB projects. There was no interaction effect between project type and selection method. Project stakeholders stated that reduction of risk is the principal benefit of using CMl/GC; however, architects and subcontractors are less enthusiastic than owners and general contractors. Data on two nearly identical projects indicated that the DBB project was less costly than the comparable CMlGC project and also incurred less cost growth; both projects were completed on time. To summarize, this research fails to find support for the current Oregon law that exempts certain projects from competitive bidding based on the presumption that CMl/GC will lead to substantial cost savings but does indicate that the CMl/GC projects may be better able to accommodate accelerated project schedules.

The general purpose of this study was to determine whether deregulation in Indiana via Public Law 25-1995 has had an adverse effect on either quantity or adequacy of new school construction. Data for projects approved during the three years preceding deregulation (1992-1994) were compared with data for projects approved during the three years following deregulation (1996-1998).Data for the projects were obtained from state agencies. They included the number of projects approved, the cost of each project, the size of each project, and school district enrollment, and the assessed valuation of each school district in each of the years studied. Major findings included: (a) The annual average number of approved projects prior to deregulation was 14 and the annual average following deregulation was 13. (b) The size of approved elementary level projects did not change following deregulation (it remained at 138 square feet per student). The size of approved middle level projects decreased from 196 square feet per student to 170 square feet per student after deregulation (a 14% decrease), and the size of middle schools became less uniform. The size of approved high school projects decreased from 230 square feet per student to 209 square feet per student after deregulation (a 9% decrease). (c) The average cost per square foot of approved elementary school projects declined from $113 to $109, and the average cost per square foot of approved high school projects declined from $119 to $107 after deregulation. The average cost per square foot of approved middle level projects increased from $105 to $110. (d) School district wealth did not have a significant effect on either the quantity of projects or the size of projects. (e) School district size did not have a significant effect on either the quantity of projects or the size of projects.Recommendations include additional long-term studies to address not only the effects of deregulation on school facilities, but also the effects of deregulation on educational programming.
Department of Educational Leadership

This thesis examines the reform of the legislative regime for governing offshore oil development on Australia's continental shelf. In particular, the thesis explores how several factors have combined to shape the Commonwealth's offshore petroleum legislation at various stages since its original enactment. The more important of these factors include questions of constitutional law, the impact of the emerging law of the sea, the Commonwealth's policy-making and administrative expertise, and the input of state governments and the oil industry to Commonwealth offshore policy. The thirty year history of the Petroleum (Submerged Lands) Act can be considered as having evolved through four distinct phases. During the 1960s, the Commonwealth legislated to accommodate the states' much greater capacity to administer offshore oil development. The second phase of offshore policy in the 1970s is characterized by the Commonwealth's assertion of its superior legislative capabilities over offshore areas visa-vis the states. Following the associated inter-governmental tension, the third evolutionary phase in the early 1980s represents a return to a collaborative offshore policy approach. The fourth phase corresponds with the current mature state of the regime wherein the Commonwealth now prevails in offshore petroleum policy but still involves the states directly in continental shelf policy making under Commonwealth law. Despite the responsibilities of the Commonwealth and states shifting over time because of the influence of the factors identified above, the participation of both spheres of government. in continental shelf policy has never been seriously doubted. This thesis argues that it is the joint exercise of decision-making powers by the Commonwealth and states that has provided stability to an otherwise volatile area of natural resources policy. In strictly legal terms, the Commonwealth could have asserted its jurisdiction in respect of the extended continental shelf when it first entered this legislative policy field in 1967. Because of the particular combination of factors prevailing at that time, however, the Commonwealth instead vacated to the states the policy field of offshore petroleum. The early role assumed by the states assured them of continued participation in the Commonwealth's offshore petroleum regime, even after offshore jurisdiction was divided three miles offshore in 1980 as part of the Offshore Constitutional Settlement (OCS). At the same time, the Commonwealth has come to realize the necessity of state government input to its continental shelf regime. While the Commonwealth has increasingly legislated to reduce the role of the states in offshore petroleum policy, this sphere of government still participates directly in administering the continental shelf regime through the exercise of Commonwealth powers. That the Commonwealth has progressed its marine resources policies within the context of the OCS without sending Australia back into another phase of offshore disputation testifies to the maturation of this policy area, and the legal and administrative regimes established to govern offshore petroleum development. The thesis shows that the regime established under the Petroleum (Submerged Lands) Act has handled jurisdictional issues with a high degree of success through its evolving partnership between the Commonwealth and the states. Although the offshore petroleum regime does have some shortcomings, the legislation nonetheless provides a model by which jurisdictional differences over offshore resources can be overcome. Thus, the offshore petroleum regime established under the OCS arrangements has relevance for other federations struggling with offshore jurisdiction issues, particularly the United States.

This thesis explores whether and to what extent the theoretical and legal foundations of competition and consumer law can advance food animal welfare initiatives and address welfare issues associated with the religious slaughter of animals. By 'food animals' I mean the millions of chickens, cows and pigs processed and slaughtered in Australia each day for human consumption. This exploration proceeds, as an example, through an evaluation of the prohibition against misleading or deceptive conduct in section 18 of the new Australian Consumer Law ('the ACL').{u2091} Since mid-2011, the welfare of food animals has assumed a level of urgency in Australia. Disturbing evidence of Australian export cattle being abused by Indonesian abattoir workers as the cattle were slaughtered according to Islamic ritual ignited a national outcry, resulting in the Commonwealth government suspending the entire live export trade for a period of time. Similar abuses were filmed at two Australian abattoirs in 2012. Although the question posed by this thesis is narrow in its focus, the answers it anticipates, and that are explored throughout, have much wider significance for the universal task of improving the welfare of animals generally and food animals particularly. This is because in answering the central question, the thesis interrogates the normative assumptions, both philosophical and religious, that for millennia have informed the Western characterisation of animals as exploitable property. It explores the most promising contemporary philosophical challenges to this characterisation, discusses their limitations and identifies theoretical gaps that might be exploited by future scholarship for the benefit of animals. The thesis questions the protection of freedom of religious practice in democratic societies when those practices involve the slaughter of other sentient beings. It explores the difficulties experienced by governments in increasingly multicultural United Kingdom, European Union and New Zealand, in navigating this highly controversial issue. With neo-classical economic principles driving contemporary Western markets, the thesis demonstrates the incoherency experienced by governments as they pursue regulatory agendas that bring into conflict the efficient and profitable development of primary industries on the one hand and the welfare of food animals on the other. However, if an underlying cause of food animal suffering lies in market dynamics informed by neo-classical principles of efficiency and profit{u00AD} maximisation, then perhaps one indirect solution may also emerge from those same principles. Accordingly, the thesis investigates the theoretical and legal potential for consumer protection and competition policy to empower consumers in ways that will advance food animal welfare. And, it evaluates the outer limits of consumer protection jurisprudence, in the form of the prohibition against misleading or deceptive conduct in ACL s 18 in doing so. In fact, this is precisely the intention of the Commonwealth government. In its 2011 Labelling Logic Report^2 into national food labelling, the Commonwealth government has stated its intention to indirectly regulate these food animal welfare issues through market forces underpinned by competition and consumer policy. Food animal welfare concerns and religious slaughter practices are characterised by the Labelling Logic Report as 'consumer values issues' best regulated by preventing suppliers from making misleading or deceptive claims, such as 'free range', in marketing their food animal products.^3 In an increasingly competitive food product market, it is anticipated that demand for ethically produced food animal products will signal producers of consumer preferences for food animal welfare practices. In safeguarding this consumer demand, the Commonwealth government intends the ACL to play a key role in preventing suppliers from exploiting consumer demand for welfare-friendly food animal products by preventing misleading or deceptive marketing claims. Through the analytical device of hypothetical litigation commenced by the ACCC against a large national retailer of food animal products alleging misleading or deceptive conduct in food animal welfare representations associated with those products, the thesis demonstrates how case law enables the ACL to prevent 'positive' but misleading claims. However, it also explores legal difficulties associated with conceptualising silence as misleading or deceptive conduct potentially compromising the ability of the ACL to address welfare issues associated with the religious slaughter of animals. In these circumstances, if it is seriously intending to support consumer values issues associated with food animal welfare, the Commonwealth government will need to supplement the general provisions of the ACL with more specific legislative reforms empowering consumers to make accurate and informed purchasing decisions in expressing their demonstrated concern for food animal welfare. Of course, reliance upon the ACL or labelling specific consumer legislation does not absolve Western societies of the larger imperative to develop a coherent philosophy of animal welfare that commands general acceptance. With that imperative in mind, and although this is a legal and not a philosophical thesis it nevertheless proposes a re-definition of the social contract to include all sentient beings based on an 'ethic of bioinclusiveness'; a philosophical framework created by this thesis in describing a new animal welfare ethic grounded in sentience and the fundamental interdependence of human, animals and the environment. However, until an adequate philosophy of animal welfare has been created and gen.erally accepted, the thesis concludes that consumer demand, protected by the ACL and underwritten by strategic enforcement through the ACCC, has the potential to permit at least partial advances in food animal welfare. 1 Effective from 1January 2011and found in Schedule 2 to the Competition and Consumer Act 2010 (Cth). Section 18 relevantly prohibits a person, in trade or commerce, engaging in conduct that is misleading or deceptive or likely to mislead or deceive. 2 Food Labelling Law and Policy Review Panel, Labelling Logic: Review of Food Labelling Law and Policy, 27 January 2011, Commonwealth of Australia. 3 Ibid 97 [6.3].

A research report submitted to the Faculty of Engineering and the Built Environment, University of the Witwatersrand, Johannesburg, in partial fulfilment of the requirements for the degree of Master of Science in Engineering, 2016
Eskom is a state owned enterprise that generates, transmits and distributes electricity to various sectors. Hence, it supports South Africa’s growth and development aspirations by constructing new electricity infrastructure. This can be achieved by adopting safety, health, environmental and quality (SHEQ) management as a business imperative. Presently, there have been a number of incidents and accidents at some construction sites of the Eskom distribution sector in the Mpumalanga province, which are mainly due to non-compliance with construction health and safety. This research project aims to determine the compliance of contractors servicing Eskom. This is achieved by checking the compliance of the health and safety file of contractors with the Safety, Health and Environmental specification checklist of Eskom. The study aims to investigate if the use of the checklist has improved contractors’ compliance by 2014. In order to achieve these aims, factors are addressed relating to the current state of construction health and safety legislation; the impact of construction health and safety on the economy; project parameters; roles and responsibilities of parties involved on construction sites; performance of small and emerging contractors. The study shows that established contractors always achieved higher compliance when compared to the emerging contractors. In 2014, 90% of contractors complied with the checklist, hence in 2015/16 the contractors can be expected to meet the 100% requirement, therefore complying with the Eskom value of “Zero Harm”.

The transfer of energy and water utilities to private or state owned corporations raises important questions of service obligations, access, and dispute resolution for small end customers. The aim of this thesis is to explore the legal issues that confront small end users and service providers in what is a highly regulated market environment. This thesis examines the duties and obligations of energy service providers in terms of the product being fit for its expected purpose and in a manner not causing economic loss to the user. Correspondingly, the thesis examines also the rights and obligations of the user. These respective rights and liabilities of the parties are examined by reference to contracts law, consumer protection law under the Trade Practices Act, torts law and adjudication powers of the Ombudsman. The term “user” in this context refers to the small end-user, even though the analytical framework used in this thesis can, with appropriate modifications be also used in relation to others in the provider-user relationship identified here. With this in mind, the thesis examines: (1) whether the legal mechanisms created by national and state legislation and the regulatory regime have enhanced consumer sovereignty and reinforced small end customer rights relative to the old regime of franchised monopolies; and (2) whether, the legal tradition of reasonable care with its roots in interpersonal equity has been undermined by economic criteria. Despite Governments relinquishing ownership of production, transmission and distribution of energy supplies to the corporate sector, the State remains as a significant presence as a regulator of essential public utility services. Essential service utilities occupy too important a place in the social well being of society for governments to abandon them to the vagaries of market economics. Given the difficulties the courts have had of establishing reasonable care as applied to government or semi-government utilities, an important legal issue is, what is the appropriate standard of liability for negligence which should be applied to the highly regulated private and state owned service corporations which have no immunities under the Crown? In this regard, the thesis is concerned with the legal responsibility under both common law and statute to small end users for everyday power disturbances, failure to supply, and defective supply causing property damage or economic loss. In this context the basic arguments set out in the Thesis are as follows: Chapter 1 sets the background to the thesis. Chapter 2 examines regulation and the national electricity market with emphasis on the role of the Australian Energy Regulator, the Rules of the market and the liability exclusion clauses contained in the National Electricity Law. It argues that the complicated commercial and statutory structure of the market is beyond the legal ability of a small end user to challenge a negligent action of a market participant. Chapter 3 takes up the issue of whether under the Trade Practices Act 1974 (Cth) a strict liability regime should apply to service providers as argued in the Electricity Supply Association of Australia v Australian Competition and Consumer Commission case.1 It argues that electricity as “goods” (s. 4) should be subject to strict liability for defective supply. Chapter 4 examines standard form connection and supply contracts which are deemed (unseen and unsigned) to exist between service providers and small end customers. It concludes that liability exclusion clauses deny the small end customer common law contractual justice. Chapter 5 focuses on the impact of civil liability legislation in negligence, the rationalist concept of care and safety, and decision tree analysis in causation. It is considered that the legislation severely restricts the ability of the small end user to access the legal system when dealing with corporate energy providers. Chapter 6 looks at economic loss in respect of the loss of energy supplies. It argues that the common law regime does not assist the small end consumer as one of a large indeterminate class of plaintiffs who cannot recover. Chapter 7 examines the jurisdiction of the Energy Ombudsman scheme. It argues that whilst there is some scope to provide compensation to small end users, the capacity is both limited and small in amount. Chapter 8 provides some concluding arguments. The research concludes that the legal and regulatory mechanisms governing the disaggregated energy supply industry has failed to provide adequate protection for small end users. It is concluded that in the context of the existing regime, the small end user of energy services is not only disadvantaged but disenfranchised.

This thesis argues that the ‘rule of law’ was not followed in colonial and post-federation Australia in relation to a fundamental principle of the common law. According to the rule in Calvin’s Case (1608), no person born as a ‘subject’ in any part of the King’s dominions could be an ‘alien’. This was the legal position in Australia from the reception of English law until well after federation. In colonial and post-federation Australia the racial meaning of ‘alien’ was consistently used in political and legal contexts instead of its proper legal meaning. In legislation and parliamentary debates, cases and prosecutions, inter-colonial conferences and conventions it was employed to refer not merely to those who were ‘aliens’ under the common law but also to people regarded as ‘aliens’ in the broader or racial sense of the word, especially those of non-European background. Chinese and Indian settlers, Pacific islanders and even indigenous Australians were treated as ‘aliens’ in Australia even if under British law they were actually ‘subjects’ of the Crown and not ‘aliens’ at all in the accepted legal sense. In the 1820s and 1830s the New South Wales Supreme Court thought it inconceivable that ‘barbarous’ indigenous inhabitants could ‘owe fealty’ or allegiance to the British Crown, considering their legal position analogous to that of ‘foreigners’ or ‘strangers’. In debates on exclusionary legislation in the 1870s and 1880s, parliamentarians in the Australian colonies portrayed all Chinese settlers as ‘aliens’, despite acknowledging that many came from Hong Kong, the Straits Settlements or other British possessions. Immigrants from British India were generally treated the same way. Delegates to Australia’s constitutional conventions in the 1890s, including prominent legal figures, repeated this mistake. And in the 1900s Pacific islanders born in Australia as British subjects were deported as ‘aliens’ with the approval of the Australian High Court. The misuse of ‘alien’ in this case contributed to a defective judgment still cited today in support of the Commonwealth’s claims to extensive exclusionary power. Between federation and the Second World War, Queensland’s dictation test legislation and industrial awards regulating various occupations provide many examples of the misuse and manipulation of the term ‘alien’ in a legal context. In prosecutions under these laws the word was used as a weapon against non-Europeans whether they were ‘aliens’ under the law or not. Commentators both in the early years of federation and in more recent times have failed to identify the misuse of ‘alien’– and have made the same error themselves. This mistake is critical because of the continued force of the term in Australian law. The Commonwealth’s sweeping power to define who shall be citizens of Australia and to exclude, detain indefinitely without trial and deport ‘aliens’ is still justified by reference to colonial and post-federation cases and constitutional convention debates where ‘alien’ was incorrectly used in its racial sense contrary to the rule of law.

After four and a half years evaluating the viability of the establishment of the Browse LNG Precinct onshore at James Price Point in the Kimberley, Woodside and its Joint Venture Partners decided to abandon the project in April 2013. How Indigenous people in the Kimberley made their voices manifest in resource development discussions through their own internal governance system and through their interactions with the institutions of Government and transnational companies is the subject of my thesis. The Browse LNG Precinct proposal was contentious and caused deep divisions within family members, friends and employers in Broome. It became the site of a struggle for recognition of the many voices representing the competing interests of economic development, Aboriginal cultural heritage protection, and environmental conservation. My particular focus is the notion of development by Indigenous people and by the Western Australian government particularly when Traditional Law intersects with Australian mainstream law over land held in common. I examine how notions of development and related values were manifested in practice at mining sites that overlapped with Indigenous sacred sites at Noonkanbah, Argyle and James Price Point. I have found that essentially, the Indigenous people’s voices are represented through the recognition space of state institutional apparatus. The design and operation of legislative acts enabled a system of control over how Aboriginal interests are to be governed within the framework of Australia’s governance of mineral and natural resources. Co-existence between Aboriginal and Western cosmology constitutes dynamic processes and the interplay for mutual recognition. In practice, the dominant system of control filters the Indigenous voice by its translation within the institutional practices of the Australian state and legal system.