From 1 January 2021, all persons authorised to refer adjudication applications to adjudicators under section 28 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (Authorised Nominating Authorities or ANAs) must adhere to the Building and Construction Industry Security of Payment – Authorised Nominating Authorities (Code of Practice) Order 2020. The Code sets out the standards to which ANAs must carry out their functions.
ANAs should review the Code now and ensure that they are ready to comply with the Code from the start of next year. The Code imposes a number of new obligations on ANAs, including:
Standards of conduct: ANAs will be required to exercise all reasonable skill, care and diligence when exercising their functions under the Act and act honestly, fairly, transparently and professionally in all dealings with adjudicators, claimants and respondents (Interested Persons). ANAs must not compromise their professional independence or integrity, engage in disreputable or unconscionable conduct or confer an unfair advantage on a person in dealings with an Interested Person.
Confidential information: AMAs must not use or disclose confidential information about an Interested Person without that person's consent or a lawful excuse, and must take all reasonable steps to ensure the security of any confidential information in their possession or control.
Avoiding conflicts of interest: ANAs must not refer an adjudication application to an adjudicator if they have a conflict of interest or perceived conflict of interest with an Interested Person or accept bribes or other inducements to refer an adjudication application to a particular adjudicator or provide an adjudication certificate.
Adjudication applications and certificates: Immediately after receiving an adjudication application, the ANA must notify the claimant and respondent of the fees for the adjudication application and adjudication certificate. Within three business days of receiving a claimant's request for an adjudication certificate, or of receiving the fee for the provision of an adjudication certificate, the ANA must provide an adjudication certificate.
Before an ANA refers an adjudication application, the ANA must consider:
- if additional qualifications, skills, knowledge and experience are required to adjudicate the dispute;
- the amount claimed;
- the complexity of the issues in dispute; and
- whether the adjudicator is able to determine the adjudication application as expediently as possible.
Policies: ANAs must implement policies:
- to identify and manage actual and perceived conflicts of interest that affect or are perceived to affect the ability of the ANA to carry out its role impartially and in the interests of the parties to the adjudication;
- with respect to the management of adjudication applications (including referral to adjudicators), confidential information and business continuity risk; and
- the resolution of complaints made by Interested Persons and the resolution of disputes between adjudicators and ANAs.
Reporting: ANAs must provide the Secretary with:
- quarterly reports which set out details of each adjudication application received and each claim for which the ANA provided an adjudication certificate; and
- annual reports detailing each adjudicator to whom the ANA referred an adjudication application and any information about changes to the authority's policies and procedures.