Western Suburbs Law Association
4 June 2013
Michael Heaton QC
The Building and Construction Industry Security of Payment Act 2002 (Vic) made simple
Purpose and Object of Act
1.
The purpose of this Act is to provide for an entitlement to progress payments: ss.1 and 2. The object
is to ensure that any person undertaking construction work, be it builder, contractor or subcontractor,
is entitled to receive and recover progress payments: s.3(1).
2.
It does this by first creating a statutory entitlement as distinct from a contractual entitlement: s.3(2).
Second, the Act provides a statutory procedure to recover a progress payment by way of a payment
claim by the claimant, a payment schedule by the respondent and if the payment claim is disputed it
can be referred to an adjudicator and then payment of the adjudicated amount. If the adjudicated
amount is not paid, the Act provides procedures for recovery of it: s.3(3).
3.
The Act does not limit entitlements under a contract or other remedy of the parties but the parties
cannot contract out of the Act: s3.(4) and s.48. Adjudication is an interim determination.
4.
The Act seeks to overcome the notorious situation where somewhere along the chain, payment is
withheld. It ensures cash flow which is the “lifeblood” of the industry.
5.
The Act creates a dual regime. There is the contractual regime and the statutory regime. The
statutory regime takes precedence.
Construction work
6.
S.5 defines construction work. The only exclusion from the definition is drilling for or extraction of oil or
natural gas and extraction of minerals including tunnelling, boring or constructing underground works
for that purpose. Construction work includes related goods and services: s.6.
Contracts to which it applies
7.
The Act applies to any contract written or oral and even if said to be governed by a law of another
jurisdiction: s.7(1). The Act however, does not apply to first, a construction contract that forms part of
a loan agreement, guarantee or insurance contract involving a recognised financial institution.
Second, contracts between builder and building owner under the Domestic Building Contracts Act
1995 other than where the building owner is a builder of residences and the contract is part of that
business. There are other exceptions in s.7(2) to s.7(6).
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Reference Date
8.
How does the Act work? Ss.9, 10 and 12 are critical to understanding the Act. S.9 is headed Rights
to a Progress Payment. S.9(1) provides that on and from each “Reference Date” a person carrying
out construction work is entitled to a progress payment.
9.
The Reference Date is defined as the date under the contract on which a claim for a progress
payment may be made (s.9(2)(a)(i)) or the date under the contract by reference to which the amount
of a progress claim is calculated (s.9(2)(a)(ii)). Both in relation to specific items of construction work
carried out or to be carried out or related goods and services supplied or to be supplied: s.9(2)(a)(ii).
10.
Basically, it is the date under the contract for the making of claims for progress payments. In a lot
contracts it is generally about the 26th day of each month. In many construction contracts that date is
generally a particular date each month.
11.
If the contract does not make express provision for a Reference Date, the Act supplies the Reference
Date. In the case of a first Reference Date it is 20 business after construction work was first carried
out under the contract and second and subsequent Reference Dates are 20 business days after the
previous Reference Date. This effectively makes the Reference Date every 26 days: s.9(2)(b).
12.
I have not yet come across a construction contract that does not have the date for making progress
payment claims but it could well occur especially if the contract is oral or partly written or partly oral.
13.
The Act also deals with the situation where there is a single or one-off payment (s.9(2)(c)) and the
case of a final payment (s.9(2)(d).
14.
The Reference Date is critical to the statutory regime because it creates the entitlement to make a
progress claim on and from each Reference Date.
Amount of progress payment
15.
S.10 deals with the amount of the progress payment, being the amount calculated in accordance with
the contract and if the contract does not expressly provide then the value of the construction work
carried out.
Claimable variations and included amounts
16.
Many claims under construction contracts are for variations. The Victorian Act has provisions that
none of the other state Acts have. These provisions are what are called claimable variations and
excluded amounts. Claimable variations are dealt with in s.10A, and excluded amounts in s.10B. As
you would expect a claimable variation is one under the Act that can be claimed and an excluded
amount deals with claims which cannot be made.
17.
There are two classes of claimable variations. Class 1 variations where everything is agreed, that is,
that the work was carried out, agreement as to the scope of the work carried out, agreement that the
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work is a variation, agreement that the contractor is entitled to a progress payment for the variation
and the amount of the payment and the time for payment. There is nothing left to chance on a Class 1
variation!
18.
Trying to explain Class 2 variations to a contractor or a subcontractor where there are complications
under the Act, causes their eyes to just glaze over!
19.
A Class 2 variation requires agreement that work was carried out and that it was requested or directed
to be carried out but the parties do not agree about the entitlement to a progress payment for the
work, its value or the method of valuing the work, or the time for payment of it: s.10A(3)(a)-(c).
20.
There are further qualifications. Subject to s.10A(4) the contractor can make the claim if when the
contract was entered into the contract price was $5million or less: s.10A(3)(d)(i). If the contract price
was greater than $5million and the contract contains no method of resolving disputes, the contractor
can also make the claim subject to s.10A(4): s.10A(3)(d)(ii). If however, the contract does contain a
method of resolving disputes and the price exceeds $5 million then the contractor is not entitled to
make a Class 2 variation claim. If the contract simply says the parties “may” refer the matter to
arbitration or expert determination, that is not good enough, but if there was a method that was
compulsory under the contract and it is a determinative method that would probably satisfy a method
of resolving disputes. See AC Hall Air Conditioning Pty Ltd v Schiavello (Vic) Pty Ltd [2008] VCC
1490 at [31]-[34] per his Honour Shelton J. A further qualification is in s.10A(4) which says if claims
for Class 2 variations exceed 10% of the original contract price then the amounts referred to above of
$5 million, must be read as $150,000. This further restricts claimable Class 2 variations.
21.
Excluded amounts under s.10B are:
a)
any variation not a claimable variation: s.10B(2)(a)
b)
any amount other than a claimable variation due to:
c)
i)
latent conditions;
ii)
time related costs; and
iii)
changes in regulatory requirements: s.10B(2)(b)
damages for breach of the contract or any other claim for damages arising under or in
connection with the contract: s.10B(2)(c);
22.
d)
a claim arising at law other than under the construction contract: s.10B(2)(d);
e)
any amount of a prescribed Class: s.10B(2)(e).
The claimable variations and excluded amounts provisions were introduced largely at the behest of
VicRoads’ lawyers. They seriously restrict what can be claimed for variations and other amounts.
This is the reason that claims under the Victorian Act are substantially less in number than under the
other state Acts. Nevertheless, as builders, contractors and subcontractors and their lawyers get more
familiar with the Act, it is increasingly being used.
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Valuation of construction work
23.
S.11 deals with the valuation of construction work and as you would expect, it is as per the contract or
if there is no express provision taking into account the contract price, rates or prices, and if a claimable
variation, the amount of the change in price or rates or prices as a consequence. It includes cost of
rectifying work which is defective.
Due date for payment
24.
The other important concept is the due date for payment. The due date for payment is the date a
progress payment is payable under the contract, or if there is no express provision, 10 days after a
payment claim is made. Further, interest is payable under s.2 of the Penalty Interest Rates Act or at
the rate specified under the contract: s.12.
25.
These time requirements are critical to ensuring cash flow.
26.
In Victoria there is provision for the right to exercise a lien: s.12A. I am not aware of any use of this
provision. Any contract providing for “pay when paid” has no effect: s.13.
Examples of the dual regime and precedence of the Act
27.
The first is in respect of a claimable variation under the Act but which would probably not be a
variation which could be claimed under the contract. In one case in which I was involved, the
contractor was permitted to change the walls from brick to concrete panels. The contract required
render. The render required under the contract would not stick to the concrete panels. The principal
and the superintendent directed the contractor to use a different render. The contractor did so and
claimed the cost of the render work as a claimable variation under the Act. The superintendent
disallowed it as it was a claim caused by the contractor changing the walls. The superintendent was
applying the contractual regime. Under the Act however, the claim came strictly within the terms of a
Class 2 variation and I therefore allowed it. This highlights the dual regimes in existence at the same
time. If litigation eventuates, the adjudicated amount would most likely be taken into account in the
final adjustment under the contractual regime.
28.
Another example is that of the statutory declaration requirements under construction contracts. Case
law tends to indicate that the statutory declaration is a condition precedent to payment under the
contractual regime (Brewarrina Shire Council v Beckhaus Civil Pty Ltd (2003) 56 NSWLR 576; [2003]
NSWCA 4; Aquatec-Maxcon Pty Ltd v Minsen Nacap Pty Ltd (2003-04) 8 VR 16; [2004] VSCA 18).
However, there is nothing in the Act which requires any compliance with any contractual requirements
for a statutory declaration. Thus, a contractor can still make a payment claim under the Act even if the
statutory declaration has not been provided or in some cases, if it is in fact false. These cases
illustrate the dual regimes applying for the benefit of contractors under the Act, at least on an interim
basis and promoting cash flow and the pay now, argue later philosophy.
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Procedure - payment claims and payment schedules
29.
A person who is or who claims to be entitled to a progress payment as referred to in s.9(1), that is, the
Reference Date section, now called the claimant, may serve a payment claim: s.14(1). The payment
claim must identify the construction work or related goods and services to which it relates and indicate
the amount of the progress payment that the claimant claims due and must state that the payment
claim is made under the Building and Construction Industry Security of Payment Act 2002: s.14(2).
The same payment claim serves as a payment claim under the contract and under the Act.
30.
The payment claim may be served only within the period determined by the terms of the contract in
respect of the construction work to which the payment claim relates or 3 months after the Reference
Date, referred to in s.9(2) that relates to that progress payment: s.14(4)(a) and (b). This is a very tight
timeframe compared to the Acts in the other states.
31.
Sections 14(5), (6) and (7) relate to a final single or one-off payment.
32.
A claimant cannot serve more than one payment claim in respect of each Reference Date: s.14(8).
But s.14(8) does not prevent the claimant from including in a payment claim an amount that has been
the subject of a previous payment claim if the amount has not been paid: s.14(9). Thus claimants can
continue to claim amounts not paid from previous payment claims. Most contracts provide for monthly
payment claims throughout the duration of the contract. An unresolved issue in Victoria is whether
that enables claimants to continue to claim unpaid amounts beyond the 3 months.
33.
Payment schedules respond to payment claims: s.15(1). The payment schedule must identify the
payment claim to which it relates, indicate the amount of the payment the respondent proposes to
make, which is called the scheduled amount, and identify any amount of the claim the respondent
alleges is an excluded amount: s.15(2). If the scheduled amount is less than the claimed amount the
payment schedule must indicate why the scheduled amount is less, and if the respondent is
withholding any payment, the reasons for withholding any payment: s.15(3).
Failure to deliver payment schedule or pay claimed amount
34.
If a respondent does not provide a payment schedule to the claimant within the time required by the
contract or within 10 business days after the payment claim is served, whichever is the earlier, the
respondent becomes liable to pay the claimed amount to the claimant on the due date (the due date
for payment under s.12): s.15(4).
35.
If a respondent fails to deliver a payment schedule or to pay the whole or any part of the claimed
amount on or before the due date, or having given a payment schedule, fails to pay the whole or any
part of the scheduled amount on or before the due date then the claimant is entitled to recover the
unpaid portion of the claimed amount as a debt due to the claimant in any Court of competent
jurisdiction, or alternatively, is able to make an adjudication application under s.18(1)(b) or
s.18(1)(a)(ii) in relation to the payment claim: ss.16 and 17.
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36.
In such summary judgment proceedings the respondent is not entitled to bring any cross claim against
the claimant or raise any defence in relation to matters arising under the construction contract: s.16(4)
and s.17(4).
37.
There are any number of cases where defendants have sought, in summary judgment proceedings
pursuant to the Act against them, to raise defences under the contract. But the Courts have
interpreted ss.16(4) and 17(4) as meaning just what they say. Thus defendants are not entitled to
raise any defence or bring any cross claim under the contract. In this way, claimants are entitled to
significant judgments on payment claims, sometimes well into the millions of dollars, and although
respondents may have good defences and claims under the contract, they are still obliged to pay
under the Act. See Beckhaus v Brewarrina Council [2002] NSWSC 960; Walter Construction Group
Ltd v CPL (Surrey Hills) Pty Ltd [2003] NSWSC 266; ISIS Projects Pty Ltd v Clarence Street Pty Ltd
[2004] NSWSC 714; affirmed on appeal Clarence Street Pty Ltd v ISIS Projects Pty Ltd [2005] 64
NSWLR 448; Blue View Constructions Pty Ltd v Vain Lodge Holdings Pty Ltd [2005] VCC 1325
(Shelton J); Age Old Builders Pty Ltd v John Arvanitis and George Arvanitis [2006] VCC 1827
(Shelton J); Plaza West Pty Ltd v Simon’s Earth Works (NSW) Pty Ltd [2008] NSWCA 279; AC Hall
Air Conditioning Pty Ltd v Schiavello (Vic) Pty Ltd [2008] VCC 1490; John Holland Pty Ltd v Coastal
Dredging & Construction Pty Ltd & Ors [2012] QCA 150; and BHW Solutions Pty Ltd v Altitude
Constructions Pty Ltd [2012] QSC 214. Thus, the dual regimes are highlighted.
Adjudication applications
38.
A claimant may make an adjudication application:
a)
First, where the respondent gives a payment schedule but the scheduled amount is less than
the claimed amount or the respondent fails to pay the whole or any part of the scheduled
amount: s.18(1)(a);
b)
Second, where the respondent fails to provide a payment schedule or to pay the whole or any
part of the claimed amount: s.18(1)(b). In this case, certain notification and time for response
has to be given: s.18(2).
39.
The adjudication application has to be made within 10 business days of receipt of the payment
schedule or 10 business days after the due date for payment or 5 business days after the time for the
respondent to respond under s.18(2). It must be accompanied with the fee determined by the
authorised nominating authority and may contain submissions relevant to the application that the
claimant chooses to include: s.18(3).
40.
Adjudication application must be made to an authorised nominated authority chosen by the claimant:
s.18(3)(b). If the construction contract lists 3 or more authorised nominating authorities, the
application must be made to one of those authorities chosen by the claimant: s.18(4). Thus the
claimant choses the ANA. The Institute of Arbitrators and Mediators Australia is an ANA under the
Act.
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41.
The adjudication application must be served on the respondent: s.18(5).
42.
The ANA is to refer the adjudication application to an adjudicator as soon as practicable: s.18(7). If
the adjudicator does not accept the adjudication application within 4 business days after the
application is made (to the ANA) the claimant is entitled to make a new application within 5 business
days after the claimant becomes entitled to withdraw the previous adjudication application: s.28.
Thus, there are tight timeframes applicable. The adjudicator is taken to have been appointed to
determine the application on accepting an adjudication application when notice is given to the last of
the parties: s.20(3).
Adjudication responses
43.
A respondent is able to lodge an adjudication response within 5 business days after receiving a copy
of the adjudication application or 2 business days after receiving notice of the adjudicator’s
acceptance of the adjudication application, whichever time expires later. This effectively gives a
respondent 5 business days to lodge the adjudication response: s.21(1).
44.
The adjudication response must be in writing identifying formal matters and may contain submissions
relevant to the response that the respondent chooses to include: s.21(2).
45.
A respondent may only lodge an adjudication response if the respondent has provided a payment
schedule to the claimant within the time specified in s.15(4) or s.18(2)(b): s.21(2A).
46.
Further, if the adjudication response includes any reasons for withholding payment that were not
included in the payment schedule, the adjudicator is to serve notice on the claimant setting out those
reasons and stating the claimant has 2 business days after being served with the notice to lodge a
response to those reasons, with the adjudicator: s.21(2B). In other states, such as New South Wales,
the adjudication response cannot include matters not included in the payment schedule. In Victoria,
s.21(2B) can create problems for claimants where, particularly, there is inadequate time to obtain
expert evidence in reply. This occurred in Maxstra Constructions v Gilbert [2013] VSC 243.
47.
The adjudication response must of course, also be served on the claimant: s.21(3).
48.
It is important for the respondent to lodge the adjudication response within time because an
adjudicator is not to consider an adjudication response unless it was made before the end of the
period in which the respondent may lodge the adjudication response: s.22(3).
The adjudication
49.
The tight timeframes then turn on the adjudicator. The adjudicator is to determinate the adjudication
application as expeditiously as possible but in any case, within 10 business days after the date on
which acceptance by the adjudicator of the adjudication application takes effect, or within the further
time not exceeding 15 business days after that date to which the claimant (not the respondent)
agrees: s.22(4). A claimant is not to unreasonably withhold agreement: s.22(4)(a).
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50.
The adjudicator may request written submissions from either party and give the other party an
opportunity to comment on those submissions, may set deadlines for further submissions and
comments, may call a conference and may carry out an inspection: s.22(5). Any conference is to be
conducted informally and parties are not entitled to legal representation unless permitted by the
adjudicator: s.24(5A).
51.
The adjudicator’s determination must be of the amount of the progress payment, if any, to be paid by
the respondent to the claimant – “the adjudicated amount”, the date upon which the amount became
or becomes payable and the rate of interest payable on that amount in accordance with s.12(2):
s.23(1).
52.
In determining an adjudication application the adjudicator must consider only:
a)
provisions of the Act and any Regulations;
b)
subject to the Act, the provisions of a construction contract;
c)
the payment claim and/or submissions in support;
d)
the payment schedule and any submissions in support;
e)
the results of any inspection carried out by the adjudicator.
s.23(2). It would appear the Act only permits very limited reference to the contract, namely, for the
Reference Date, the due date for payment, prices, rates for payment, interest rate applicable and such
matters. This highlights the precedence of the Act.
53.
The adjudicator is not to take into account an excluded amount or any matter prohibited by the Act
from being taken into account. Further, the adjudicator’s determination is void to the extent that it has
been made in contravention of s.22(2) and s.22(2A).
54.
The adjudicator is required to give reasons for the adjudication determination and the basis upon
which any amount or date has been decided: s.23(3).
55.
Thus, there are very tight timeframes imposed both on a claimant and a respondent and the
adjudicator. At one stage I was involved as adjudicator in respect of an application by a publicly listed
company in respect of the Eastlink project. The respondent was also a publicly listed company. The
adjudication application comprised 8 lever arch folders. The adjudication response comprised about
8 lever arch folders. I had 10 business days to deliver my adjudication determination. That is
effectively 14 days taking into account the weekends. I did nothing else for about 14 days! Each time
I read the submissions on behalf of the claimant, I thought to myself, they’re pretty good submissions.
Each time I read the submissions on behalf of the respondent, I thought to myself, they’re pretty good
submissions as well. Issues also arose in respect of natural justice questions and complaints were
being made about submissions made by the other party. There were also legal and factual issues that
required determination. I certainly had my hands full in dealing with the adjudication application. In
the end, by 3.00 pm on the tenth business day I had put together a 140 page adjudication
determination determining in favour of the claimant for some millions of dollars but certainly not the
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total that the claimant was claiming. I felt under considerable pressure in producing the adjudication
determination.
56.
Sometimes claimants sit by and wait with considerable preparation to make the payment claim and
then the adjudication application often near the end of a contract and dumping on the respondent a
huge volume of material. Sometimes they are made on the death knock at Christmas putting a
respondent under considerable pressure in respect of either the payment schedule or the adjudication
response. It can be quite a testing time for parties, their lawyers and the adjudicator.
57.
The adjudicator’s fees and expenses are dealt with in s.45. S.45(2) entitles an adjudicator to be paid
for the adjudication determination an amount as agreed between the adjudicator and the parties, or if
no amount is agreed by way of fees and expenses, an amount that is reasonable having regard to the
work done and expenses incurred by the adjudicator: s.45(2).
58.
The claimant and respondent are jointly and severally liable to pay the adjudicator’s fees and
expenses: s.45(3).
59.
As between themselves, the claimant and the respondent are each liable to contribute to the
adjudicator’s fees and expenses in equal proportions or in such proportions as the adjudicator may
determine: s.45(4).
60.
An adjudicator is not entitled to be paid fees and expenses if he fails to make the adjudication
determination within the time allowed by s.22(4): s.45(5). However, an adjudicator is entitled to
refuse to communicate the adjudication determination until his or her fees and expenses are paid:
s.45(6).
61.
If one party, usually the respondent, refuses to pay its required contribution of fees and expenses, the
other party may elect to pay both parties’ contribution to the adjudicator. If a party so elects, the
adjudicator must determine that that amount is to be added to the adjudicated amount under s.23.
The adjudicator can correct mistakes in the adjudication: s.24.
62.
An adjudicator is not personally liable for anything done or omitted to be done in good faith in the
exercise of a power or discharge of duty under the Act or Regulations or in the reasonable belief that
the act or omission was in the exercise of a power or discharge of a duty under the Act or the
Regulations\: s.46.
63.
The Victorian Act has provision for review adjudications. They are contained in Part 3 Division 2A,
ss.28A-28L.
Enforcement
64.
If a respondent fails to pay the adjudicated amount or any part of it, the claimant may request an
adjudication certificate from the ANA. The requirements for an adjudication certificate are set out in
s.28Q.
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65.
The claimant may also give notice to the respondent of its intention to suspend carrying out
construction work or suspend supply of related goods and services: s.28O(1). The notice under
s.28O(1) cannot be given until the time for an adjudication review application has expired, that is, 5
business days.
66.
Where ANA has provided an adjudication certificate, the person may recover as a debt due to a
person in any Court of competent jurisdiction, the unpaid portion of the amount payable under s.28M
or s.28N: s.28R(1).
67.
The adjudication certificate must be filed in Court with an affidavit by the person stating the whole or
any part of the amount payable under s.28M or s.28N has not been paid at the time the certificates is
filed: s.28R(2).
68.
Judgment may be entered for the amount not paid: s.28R(3).
69.
Thus, there is a quick summary procedure based upon an adjudication certificate from the ANA.
70.
Further, if a person commences proceedings to have that judgment set aside they are not entitled to
bring any cross claim against the person who brought the proceedings under s.28R(1) or raise any
defence in relation to matters arising under the construction contract or challenge an adjudication
determination: s.28R(5). Further, under s.28R(5)(b) the person is required to pay into Court as
security, the unpaid portion of the amount payable pending final determination of those proceedings.
The person is however, under s.28R(6) entitled to challenge and adjudication determination on the
ground that the adjudicator took into account a variation of the construction contract that was not a
claimable variation.
71.
There are thus, very few grounds for challenging an adjudication determination where an adjudication
certificate has been provided and lodged in Court with the appropriate affidavit and judgment entered.
72.
There is provision in the Act, where there has been an adjudicated amount, the respondent has failed
to pay and the claimant has obtained judgment, for the claimant to recover from a person other than
the respondent, namely the principal. This is contained in Part 3 Division 4 of the Act.
Service of notices
73.
Service of notices is dealt with in s.50. It covers delivering to a person personally, lodging in normal
office hours at a person’s ordinary place of business, sending by post or facsimile, or any other
manner specified in the relevant construction contract. S.50 does not specifically deal with email
although it is frequently used. In respect to service by post, 2 business days is given as to the time of
receipt, and if a fax is sent but received after 4.00 pm it is taken to have been received on the next
business day.
74.
Vickery J, the judge in charge of the Technology Engineering and Construction List in the Supreme
Court, has been quite lenient in respect of times for service.
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Applications to the Court
75.
As amounts involved in adjudication determinations can be substantial, applications are often made to
the Court to set aside or review adjudication determinations. Because of the object and purpose of
the Act to promote cash flow in the building industry, the Courts interpret the Act purposively. See
Seabay Properties Pty Ltd v Garvin Construction Pty Ltd & Anor [2011] VSC 183 where Vickery J
decided that a respondent could not rely upon liquidated damages as a set-off to a payment claim
under the contract because it was an excluded amount under s.10B even though claimed by the
respondent, not the claimant. He considered this better fulfilled the purpose of the Act.
Interim determination
76.
An adjudication is an interim determination. They do not affect the ultimate determination if
proceedings by way of Court proceedings or arbitration is undertaken and s.47 provides that Part 3
does not affect the rights of a party to a construction contract or proceedings arising under the
construction contract including arbitration proceedings or other dispute resolution proceedings.
S.47(3) provides for any adjudication determination to be taken into account in the ultimate
assessment of what may be due from one party to the other and the Court may, in effect, reverse the
adjudication determination by taking into account by way of deduction a payment that has been made.
Conclusions
77.
First, the Act creates dual regimes. The regime under the Act can be inconsistent with the contractual
regime such that requirements under the contract for payment of a progress payment are irrelevant to
obtaining payment under the Act.
78.
Second, the Act takes precedence on an interim basis.
79.
Third, progress payment claims can be made under the Act and under the contract and one claim can
fulfil both purposes.
80.
Fourth, the regime under the Act promotes a cash flow.
81.
Fifth, builders, contractors and subcontractors, that is, those persons carrying out construction work,
ought to be making more use of the regime under the Act.
Michael Heaton QC
Melbourne TEC Chambers
MTECC
List: Gordon & Jackson
Liability Limited by a scheme approved under the Professional Standards Legislation
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