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Scholarly Paper
Mandating the Continuing Professional Development in
Statutory Adjudication: Adjudicators’Perspectives
Samer Skaik1and Kelly Fernandez Monsalvo2
Abstract: Statutory adjudication is a swift dispute resolution platform to determine payment disputes within the building and construction
industry security of payment legislation. In recent years, Australian courts have been more willing to intervene in the adjudication process
due to the poor decision-making process and/or failure of some adjudicators to comply with the basic and essential requirements under the legis-
lation. To improve thecompetence ofadjudicators, Queensland has recently mandated continuing professional development (CPD) requirements
for all registeredadjudicators and required adjudicators to engage in predefined educational activities and obtain at least 10 CPD points every year
to maintain their eligibility to adjudicate. This timely study explores the perceptions of Queensland adjudicators and the factors influencing the
effective implementation of the mandatory CPD requirements. The study follows an inductive qualitative approach by adopting semistructured
interviews with 11 registered adjudicators in Queensland. The study found that adjudicators generally support the notion of the CPD requirements
but had mixed views regardingthe content and dynamics of CPD activities. The study identified and discussed key factors influencing the effective
implementation of the CPD policy, including the requirements for adjudicator registration and renewal, adjudication panel size, and adjudicator
appointment criteria. The study findings are not only beneficial to inform future reforms in Queensland but also relevant to other comparable
jurisdictions seeking to mandate similar CPD requirements for adjudicators. DOI: 10.1061/(ASCE)LA.1943-4170.0000566.This work is made
available under the terms of the Creative Commons Attribution 4.0 International license, https://creativecommons.org/licenses/by/4.0/.
Author keywords: Adjudicators; Continuing professional development (CPD); Queensland; Security of payment.
Introduction
Over the past two decades, the building and construction industry
security of payment (SOP) legislation has been evolving progres-
sively across all Australian states and territories with the unified
purpose of facilitating expeditious progress payment for subcon-
tractors (Murray 2017). In contrast to the traditional protracted and
expensive curial proceedings, the adjudication process introduced
within the SOP legislation was designed to quickly resolve pay-
ment disputes and improve the cash flow of subcontractors (Bell
and Vella 2010;Collins 2012). According to Davenport (2010), the
crucial success factor ofthe SOP legislation in the Australian eastern
jurisdictions is connected to the capacity of the legislation to assist
contractors and subcontractors to promptly recover progress pay-
ments. However, considerable operational problems have been iden-
tified, threatening the aim of this process and creating an atmosphere
of dissatisfaction over the adjudication outcomes (Munaaim 2011;
Murray 2017;Skaik 2017b). The lack of trust in the system has
motivated aggrieved parties to seek judicial review to challenge ad-
judication decisions, hurting the fast-track spirit of the legislation,
and the Australian courts have quashed many determinations for
reasons relating to the poor adjudication decision-making process
(Bartels et al. 2014;Skaik 2017c). The arguments of successful
challenges include, inter alia, denial of natural justice, acting with-
out jurisdiction, adjudicator’s bias, and nonfulfillment of the essen-
tial role of the adjudicator (Bartels et al. 2014).
Adjudication determinations should satisfy the following basic
requirements: adjudicators act within their statutory authority; they
follow natural justice principles; they exercise their powers in good
faith, and adjudicators’determinations do not contain material and
substantial errors of law (Skaik 2017c). The lack of strong appoint-
ment criteria has led to the appointment of adjudicators based on
their availability rather than their expertise (Skaik et al. 2016). In
Victoria, for instance, adjudicators are supposed to accept a referral
only if they display the competencies required, encouraging a sense
of self-assessment (Skaik et al. 2016).
The competence of adjudicators and their proper training are
elements of considerable importance in the context of securing a
quality process and results aligned with an expedited, fair, and sys-
tematic adjudication (Fiocco 2018;Murray 2017;Wal lac e 201 3).
The regulations of adjudicators as well as their training and compe-
tencies have been questioned on a regular basis (e.g., Coggins and
Donohoe 2018;Collins 2012;Murray 2017;Fiocco 2018;Senate
Economic References Committee 2015;Skaik 2021). To address this
matter, and as a measure to counteract the increasing distrust in the
legislation, Queensland introduced major reforms in 2017 and im-
posed several conditions on adjudicator registration. One of the im-
posed conditions was the requirements of continuing professional
development (CPD) to maintain the quality and competencies of reg-
istered adjudicators. In November 2018, the Queensland government
released Continuing Professional Development for Adjudicators
Policy, hereafter “CPD policy.”In 2019, New South Wales (NSW)
also mandated similar CPD requirements in its reform and released
Continuing Professional Development Guidelines for Adjudicators,
which has been in effect since September 2020. Although the CPD
policy in Queensland has been in operation for a few years, there is
little literature examining the relevant perceptions of adjudicators and
evaluating the extent of the effectiveness of CPD requirements.
1Senior Lecturer in Project Management, School of Engineering and
Technology, Central Queensland Univ., Melbourne Campus, 120 Spencer St.,
Melbourne, VIC 3000, Australia (corresponding author). ORCID: https://
orcid.org/0000-0003-1047-3058. Email: s.skaik@cqu.edu.au
2Graduate, School of Engineering and Technology, Central Queensland
Univ., Melbourne Campus, 120 Spencer St., Melbourne, VIC3000,Australia.
Email: kelly.fernandez@cqumail.com
Note. This manuscript was submitted on March 4, 2022; approved on
July 4, 2022; published online on September 1, 2022. Discussion period open
until February 1, 2023; separate discussions must be submitted for individual
papers. This paper is part of the Journal of Legal Affairs and Dispute Re-
solution in Engineering and Construction, © ASCE, ISSN 1943-4162.
© ASCE 04522023-1 J. Leg. Aff. Dispute Resolut. Eng. Constr.
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Therefore, this paper aims to explore the perceptions of adjudi-
cators toward Queensland’s CPD policy and assess, according to the
adjudicators’experiences, possible improvement opportunities in the
implementation of the CPD policy to make it more effective and
feasible. The study is guided by the following research questions:
1. What are the views of adjudicators regarding the mandatory
CPD policy in Queensland and its requirements?
2. What are the factors influencing the effective implementation of
the CPD policy and how to address them?
Literature Review
Adjudicator Regulations in Queensland
The Queensland Building and Construction Commission (QBCC)
is a statutory body within the portfolio of the Minister for Public
Works, established under the Queensland Building and Construction
Commission Act 1991 to regulate the building industry. Tradition-
ally, the authorized nominating authorities (ANAs) were responsible
for appointing training and appointing adjudicators to decide adju-
dication applications under the SOP legislation. However, Queens-
land introduced major reforms in 2014 and abolished all ANAs
(Murray 2017;Skaik 2017a). The ANA role was taken over by the
Adjudication Registrar within the QBCC (hereafter “the Registrar”)
for processing adjudication applications, registration of adjudica-
tors and referral of matters to adjudicators. The 2014 reform sought
to establish a more structured mechanism for the adjudicator’s
registration, appointment, and regulation after claims of perceived
bias in the adjudicator’s appointment and was informed by many
recommendations of a legislative review report (see Wallace 2013).
In 2017, Queensland implemented further reforms by virtue
of the Building Industry Fairness (Security of Payment) Act 2017
(hereafter “Queensland Act”). Section 161 of the Queensland Act
provides that, to be registered as an adjudicator in Queensland, can-
didates must meet specific requirements that include holding an
adjudication qualification or another qualification that the Registrar
appraises to be equivalent to an adjudication qualification. The
Registrar nominated Contract Administration Group Pty Ltd., a pri-
vate organization, to provide adjudication training and certify po-
tential adjudicators [see Building Industry Fairness (Security of
Payment) Regulation 2018, schedule 1]. The Queensland Act pro-
vides that adjudicators must renew their registration every 3 years
(section 164) and details the conditions required to approve the re-
newal request. Furthermore, section 165 provides that all adjudi-
cators must complete CPD to maintain their registration. The CPD
requirements were further explained in sections 27 to 35 of the
Building Industry Fairness (Security of Payment) Regulation 2018
as well as the CPD policy.
In 2018, the Registrar issued the Adjudicator Referral Policy
to set the considerations for referring adjudication applications to
adjudicators. To make the referral under this policy, the Registrar
first performs an initial assessment of the application to determine
whether a Grades 1 or 2 adjudicator will be adequate to resolve the
application. The Registrar will consider various key matters to ap-
point the right adjudicator to a particular matter; specific aspects
to be considered include experience, qualification, and skill. The
Registrar will consider the claimed amount along with the complex-
ity of the material issues in dispute. After this initial assessment, the
Registrar will have a clearer picture of the specific skills and exper-
tise required to determine the claim. If more than one adjudicator
assessed by the Registrar are found suited to be referred to an ad-
judication application, the decision will be made considering the last
occasion the adjudicators were referred an application, as a measure
to have a fair distribution of the referral of applications. On the other
hand, when dealing with complex claim applications that require the
involvement of a Grade 2 adjudicator, the Registrar may consider
the last occasion this adjudicator had to decide a complex matter.
CPD Requirements
The lack of competence and insufficient training of the adjudicators
have been linked with deficient adjudication outcomes (Murray
2017). Similarly, it was pointed out that most adjudicators seem
to lack the expertise required for handling jurisdictional chal-
lenges (Skaik 2017c). Even though many adjudicators have con-
siderable experience and qualifications, they are unable to write
good determinations that accurately tell the legal story to parties
in a way that the parties can understand (Skaik 2017b). According
to Murray (2017) and Skaik (2021), a timely adjudication process
requires high-caliber adjudicators who can produce meaningful,
well-reasoned determinations that cannot be appealed by aggrieved
parties. Establishing appropriate criteria for adjudicator eligibility
and training directly impacts the ability of the adjudicator to both
conduct the adjudication process in a procedurally fair manner and
have the necessary knowledge and experience to reach a reasonable
and accurate decision (Collins 2012;Fiocco 2018;Murray 2017;
Skaik et al. 2016;Skaik 2017c;Wallace 2013).
A previous study in Western Australia concluded that adjudica-
tors must demonstrate minimum standards of competence, includ-
ing legal training (Yung and Rafferty 2015). A national legislative
review recommended that adjudicators should engage in continuing
professional development activities and their performance should
be monitored in response to the many successful court challenges
(Murray 2017). In the same line, Coggins and Donohoe (2018) con-
cluded that the quality of adjudication determinations can be im-
proved by, inter alia, providing a formalized CPD training for all
adjudicators.
In Queensland, the new CPD requirements demand the adjudi-
cator to gather 10 CPD points each year. These points can be ob-
tained by completing the CPD activities listed in the CPD policy or
by other means that the Registrar considers comparable. This policy
implies that adjudicators must spend considerable time and resour-
ces to keep their registration updated to be appointed. The CPD
policy outlines the registration conditions for adjudicators and de-
tails all the requirements in terms of education and training that an
adjudicator should achieve to be appointed. The CPD policy pro-
vides that adjudicators must accumulate a minimum of 3 CPD
points by completing core CPD activities in each of the following
areas:
1. Legal principles (e.g., principles of contract law and construction
law, construction contracts, construction projects, and analysis of
the Queensland Act)
2. Practice and procedure (e.g., natural justice, good decision mak-
ing, decision writing, conducting adjudications, and roles and
functions of adjudicators)
3. Ethics (e.g., judicial ethics, impartiality, confidentiality, conflicts
of interest)
Furthermore, the CPD policy provides that an approved CPD
activity must be of significant intellectual or practical content di-
rectly related to adjudication and conducted by qualified experts.
Tab le 1provides a list of the types of CPD activities and corre-
sponding CPD points.
Research Method
This study followed an inductive qualitative approach and col-
lected primary data via semistructured interviews with 11 registered
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adjudicators in Queensland. The participants were shortlisted based
on their availability, following a convenience sampling technique.
The small sample size is recommended to support the in-depth
analysis promoted by a qualitative study (Vasileiou et al. 2018).
Contact details of the participants were obtained from different
sources, including LinkedIn, the Registrar’s database, and the ap-
proved CPD training provider in Queensland. Upon receiving the
ethics clearance from the affiliated university, the invitations to
participate in this research were sent out via email to 28 adjudica-
tors along with a consent form and an interview information sheet.
The 11 adjudicators who confirmed their participation were inter-
viewed between February and May 2021. The interview questions
were carefully crafted to obtain responses that could help test the
two research questions. The duration of each interview lasted around
60 min. All interviews were conducted via Zoom, recorded and tran-
scribed with the approval of the participants. The collected data were
manually analyzed using thematic analysis.
Research Findings
Biographies of Participants
Eleven adjudicators participated in the interviews, three of whom
were Grade 1 adjudicators (entry level) and eight were Grade 2
adjudicators (senior level). Six participants had a legal background,
including one arbitrator and five lawyers, whereas the remaining
five were construction practitioners including construction manag-
ers, project managers, and contract administrators. Most of the par-
ticipants had more than 15 years of experience in adjudication and
20 years of experience in the construction sector. Ten participants
were practicing adjudication on a part-time basis and relied upon
their respective professions to secure their main income. The par-
ticipants shared their perspectives regarding the mandatory CPD
policy and expressed their views on what they identified as factors
influencing the effectiveness of the CPD requirements in upskilling
adjudicators and contributing to better-quality outcomes of the ad-
judication process. The study participants were designated P1 to
P11 as given in Table 2.
Role of CPD Training in Upskilling Adjudicators
All the participants agreed that their approach in exercising adju-
dication has not changed after the implementation of the CPD re-
quirements. Many participants pointed out that the CPD training is
a valuable tool to keep them updated with the latest changes in the
legislation and to do networking (P2, P3, P4, P7, P10). In this con-
text, P2 stated: “I think the CPD requirements help to keep them
abreast of current trends and changes in the law, but I don’t think
they are or should be even considered as being part of the education
process to be an adjudicator.”P5 acknowledged the importance
of the CPD training in promoting discussion among professionals
from different backgrounds, such as lawyers, project managers, and
other professionals working right across the industry. Furthermore,
P2 and P4 asserted that CPD training contributes to keeping adju-
dicators well informed of the latest developments in contract law
and the approach followed by the legal fraternity when dealing with
complex decisions. P6 argued: “The CPD is only one of the tools
for enhancing or maintaining standards of adjudicators, but it can’t
do it all, and I think there needs to be some form of either peer
review or professional review of decisions.”He further elaborated:
“Many adjudicators step outside the powers that they’re given under
the act, and a lot of adjudicators don’t properly exercise the powers
that are given under the act, and the biggest fault is that decisions
are issued without adequate reasons.”P9 claimed that the CPD re-
quirements are particularly important to strengthen the adjudicators’
knowledge in key areas outside their main expertise: “Many adju-
dicators who are nonlawyers have a reasonable to good comprehen-
sion of contract administration but fall down because of an absence
of proper understanding of law, and similarly there’s a lot of lawyers
Table 2. The biographies of the study participants
No. Grade Qualification and experience
P1 2 Quantity surveyor with 40 years of experience
P2 2 Lawyer experienced in construction law with 17 years of work experience
P3 2 Lawyer experienced in construction law with 15 years of work experience
P4 2 Grade 2 Adjudicator with twenty years of experience in civil works
P5 1 Mechanical engineer with a master’s in law and 6 years of experience as an adjudicator
P6 2 Accredited mediator and arbitrator with 20 years of work experience
P7 1 Senior contracts administrator with 20 years of work experience
P8 2 Barrister with 10 years of experience in adjudication
P9 2 Lawyer experienced in construction with 20 years of experience in law and construction
P10 1 Lawyer specializing in construction law with 10 years of experience in adjudication
P11 2 Civil engineer and a full-time adjudicator with 30 years of experience in civil engineering and 21 years of
experience in arbitration
Table 1. Types of CPD activities in Queensland
Type of CPD activity CPD points
Maximum CPD points
that can be undertaken
Courses, seminars, workshops, lectures, conferences, discussion groups, multimedia, or
web-based program (in-person or online)
1 CPD point per hour N/A
Preparation and delivery of a lecture at seminars, conferences, or courses 1 CPD point per hour 5
Preparation and publication of paper or case update in law, academic, or industry publication 3 CPD points per 1,000 words 6
Satisfactory completion of subjects or modules within relevant undergraduate or postgraduate
courses or units of study from a professional body
5 CPD points per subject
or module
5
Subscriptions to a professional journal or publication relevant to adjudication 1 CPD point per subscription 1
Completion of a unit of CPD with a professional association relevant to adjudication work 1 CPD point per unit of
CPD completed
N/A
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who are adjudicators who have a reasonable to good understand-
ing and comprehension of law but fall down in the comprehension
of basic contract administration procedures in the construction
industry.”
Features of Effective CPD Training
According to the participants, the CPD activities rely heavily on
the level of involvement and self-awareness of the participants;
therefore, the implementation of a practical component is highly
encouraged to enhance the relationship between the mandatory
CPD training and adjudicator upskilling. A few participants men-
tioned that after the recent COVID-19 outbreak, training has moved
online, changing the dynamics of the CPD training. Regarding this
matter, some participants (P1, P6, P9, P11) were concerned that
some adjudicators can gather CPD points by only attending the
CPD meetings without being truly engaged. In this context, P11
argued: “You’ll have 50 plus adjudicators at that meeting and 45
of them probably don’t have their camera switched on and don’t
participate, so I suspect that they log in and walk away.”P1 pro-
posed a smaller pool of attendees to counteract this situation. A few
participants raised another concern that some adjudicators are just
rushing at the end of the adjudication year to complete the CPD
points just to keep their registration active but without actively tak-
ing part in upskilling (P1, P6, P9).
Furthermore, P1 compared the CPD activities conducted nowa-
days with the training sessions previously organized by the abolished
ANAs. According to this participant, the ANA training activities
were sometimes moderated by a judge who encouraged open discus-
sions, making room for attendees to actively participate and elabo-
rate on how a matter should be handled. P11 recalled some of the
training delivered under the ANA system which required partici-
pants to respond to questions before attending the activity for further
discussion and analysis, requiring that all attendees demonstrated
active and meaningful participation. P6 and P10 perceived that
current CPD training can be improved by adding an element of par-
ticipation, including a question-and-answer (Q&A) session and as-
signments that could be discussed among attendees. P9 asserted that
for effective CPD training, tutorials or workshops need to be devel-
oped with presentations of some scenarios followed by a discussion.
P10, also a lawyer, suggested a more intensive and in-depth CPD
training for practitioners who do not have a law background. P10
went on to say that practical components can be incorporated inde-
pendently if the content is delivered online or face-to-face.
Some participants considered that the contents of the CPD train-
ing can be quite repetitive (P3, P5, P7). P1 confirmed that the con-
tents are reasonable; however, the issue with the skills and the CPD
training relies on the professional background and experience of
adjudicators. P2 raised a similar point, stating that “the CPD require-
ments are great for those who are experienced.”P1 and P2 agreed
that adjudicating requires demonstrable experience in legal issues
as well as construction technology. P3 further added that “the rea-
son that most security of payment determinations or decisions in
Queensland are overturned by the support of the court normally
has to do with the adjudicator’s jurisdiction,”emphasizing the im-
portance of mastering some of the fundamental principles of the
SOP legislation.
The participants were also asked which skills need to be further
developed and enhanced to secure quality outcomes and whether
the CPD training is designed to improve such skills. P2 suggested
that mock adjudication is a great option but may not be appropriate
for CPD activities as it takes so much time and effort; therefore,
he supported webinars by experts as an alternative efficient option.
P4 believed that the current training is not of utmost importance
regarding educating adjudicators for producing quality decisions.
P5 considered that adjudicators should be able to take the reader on
the journey through their decision, taking into account that the peo-
ple reading this decision might not be knowledgeable. This is the
kind of skills that can only be developed by writing decisions con-
sistently, as all the participants stated. P6, who also provides CPD
training, confirmed that the contents of the CPD activities are not
aimed at improving decision-making abilities. A peer review sys-
tem, according to P2 and P10, in which each decision is scrutinized,
is a reasonable complement to the CPD training.
Influential Factors of Effective Implementation of the
Mandatory CPD Training
Registration and Renewal Process
Many participants highlighted that the current system allows un-
qualified adjudicators to register and questioned the ability of those
adjudicators to perform as per expectation by undertaking the CPD
activities. From P2’s perspective, the Registrar is allowing the reg-
istration of many candidates whose prior experience and education
are insufficient for the role. P4 was critical of the adjudicator regis-
tration requirements: “Before they even get to the stage of being
adjudicators, it’s not all that difficult of a course that they do, quite
frankly. So, yes, I think they need a lot more. You see, for arbitrator,
you’ve got to at least have completed the professional certificate in
arbitration through the University of Adelaide just to even have a
chance at grading, whereas with adjudicators, they just do this little
course over a day or two, I think it’s a 2-day course and they are
adjudicators.”This view is shared by P11, who claimed that the
repealed registration process required a more challenging assess-
ment process to filter the candidates who are less skilled for the
role. In contrast, P10 expressed that the received training for regis-
tration in Queensland was adequate to understand the context of
adjudication, particularly for the candidates who do not have a back-
ground in law.
Furthermore, many participants raised concerns regarding the
ambiguity of the renewal process of adjudicator registration. P11
claimed that the Registrar is currently considering the completion
of the CPD points only, instead of the quality of the decisions pro-
duced. In this regard, P6, who delivers CPD training in Queensland,
observed that no requirement allows the Registrar to take a non-
performing adjudicator off the list. The participant went on to say
that several adjudicators end up not performing well in practice de-
spite performing well on their training. Therefore, a reapplication
process should be put into practice and renewal criteria should be
toughened up to disqualify adjudicators who are not performing as
expected. P11 called for a more rigorous assessment process for the
triennial renewal of adjudicator registration. P3, P6, and P11 rec-
ommended the involvement of a peer review system and a perfor-
mance evaluation every 3 years as part of the renewal process.
Adjudication Panel Size
All participants unanimously viewed that the panel size in Queens-
land is too big, limiting the opportunity for adjudicators to upskill
through continuous practice of adjudication. Most participants con-
sidered that the panel size is a considerable constraint in having
the opportunity to adjudicate regularly. In this context, P1 argued:
“There are more and more adjudicators being appointed when there
is only a limited amount of work for them to do, which means that
each and every adjudicator, every time they register a new person,
gets less and less work.”P3 asserted that “the only way you really
get good adjudicators is to keep people adjudicating all the time.”
P2 argued that havinga smaller pool of adjudicators will help reduce
the number of successful challenges of adjudication determinations
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in courts. P3 claimed that the Registrar’s staff, as government em-
ployees, just follow the regulation and keep pushing for more train-
ing instead of objectively considering that the panel is big enough
already. This participant further explained that the standards among
adjudicators are dropping, as most of them are not allowed to ad-
judicate regularly. This view was supported by P1, who affirmed that
the continuous practice of adjudication is the most relevant course of
action in upskilling the panel of adjudicators. P5 explained there are
basic skills that an adjudicator should have such as critical thinking
and legal writing, and argued that such skills can only be obtained
and enhanced by putting them into practice. P9 pointed out the con-
nection between the adjudicators not getting enough referrals and
the quality decline in adjudication decisions.
P9 mentioned that, over the last 10 years, there has been a sub-
stantial reduction in the number of adjudication applications in
Queensland, while there has been a considerable increase in the
number of adjudicators registered. P4 and P5 observed that, on
average, each adjudicator receives fewer than two matters per ad-
judicator per year. Furthermore, P7 claimed that over 18 months, he
has only adjudicated one matter and has no confidence in getting a
new one soon. For this participant, limiting the number of adjudi-
cators might be of value as well as trying to keep a good balance of
people currently engaged in adjudication and building up a smaller
panel size with more experience. According to P1, adjudicators
doing only one adjudication per year find it more challenging to
gather the skills needed to write decisions. He further stated: “It’s
a bit like asking a professional golfer to go out and play on the
Masters without having played any golf all year; they’re not going
to do pretty particularly well and standards must drop.”This per-
ception is shared by P2, who also considered that CPD training is
not enough for inexperienced adjudicators. Similarly, two Grade 1
adjudicators (P5 and P10) expressed their concern that they will not
be able to upgrade to Grade 2 if they are not adjudicating enough.
Controversial Appointment Criteria
Many participants raised similar concerns regarding the ambiguous
appointment criteria of adjudicators to a particular matter as no
clear link could be established between skills, experience, and ap-
pointment. Most participants were not able to identify a consistent
practice that involves matching the skills of adjudicators with the
matters referred to, compromising the engagement of adjudicators
with the mandatory CPD training. Three participants (P8, P9, P11)
were not quite certain regarding the criteria followed by the Registrar
to appoint matters to adjudicators. These participants were particu-
larly concerned that a rotation system seems to be in place instead
of a discretionary process that considers the most experienced ad-
judicator for a particular proceeding. P11 asserted that adjudicators’
skills become irrelevant as there is no match between skills and
adjudicated matters. P10, who recently registered as a Grade 1 ad-
judicator, claimed that such a rotation system seems to be reasonable
considering the benefit for freshly enrolled adjudicators to get re-
ferrals. However, P1 observed that there is unfair distribution of
adjudication referrals among the registered adjudicators: “The ap-
pointment system seems not to be fair since there is a group that is
getting a lot of appointments and another group that is not getting
enough to make a living out of it.”P7 and P9 pointed out a contra-
diction between the appointment guidelines announced by the
Registrar and how adjudication matters are split up between differ-
ent adjudicators. P1 contrasted the current system with the ANA
system by stating that ANAs had been more inclined to perform
a thorough analysis of the skills of adjudicators during the appoint-
ment process.
When analyzing the possible reasons for the lax appointment cri-
teria, P1 and P2 mentioned that the staff currently responsible for
appointing adjudicators are not trained adjudicators themselves;
therefore, the Registrar staff are not in the position to read submis-
sions. P1 wondered whether the Registrar is under pressure to en-
sure a cost-effective process by employing junior staff that may not
be competent to appoint adjudicators. P9 claimed that the Registrar
refers a matter to an adjudicator based on only the information in the
adjudication application, which makes it difficult to determine with
certainty the extent of the complexities in a matter that needs to be
matched to a skill set. According to this participant, this situation
also requires a self-assessment from the adjudicator to objectively
acknowledge whether the matter received is out of their depth.
Possibility to Gather the Required 10 CPD Points per Year
The participants had varied views regarding the possibility of col-
lecting 10 CPD points per year. Many participants argued that for
adjudicators who provide CPD training or engage in teaching activ-
ities, gathering the 10 CPD points each year is feasible since they
can accumulate points by merely undertaking these activities (P1,
P6, P8, P9, P10). P6 mentioned other CPD activities that adjudica-
tors can pursue to gather points, including attending court hearings
or events put in place by the QBCC with free access. P3 claimed that
gathering the 10 CPD points is doable, but with considerable effort.
He further clarified that to gather the 10 points, adjudicators must
involve themselves in almost one training activity per month; that
is why he suggested reducing the number of CPD points to five. P8
shared a similar view by stating that finding the time to attend CPD
training is challenging. Similarly, P10 mentioned that some activ-
ities, besides being quite costly, require taking days off work, which
is a considerable burden for some professionals. P6 explained that
some activities require traveling from regional areas to Brisbane,
which creates more burden to regional adjudicators. Most partici-
pants, therefore, agreed on the fact that holding these events online
makes the CPD points more achievable.
Cost-Benefit Element: Motivations versus Income
When participants were asked whether they could see a clear con-
nection between getting more appointments and completing the
CPD training, they unanimously agreed there is no correlation be-
tween completing or even exceeding the CPD points and getting
more matters referred to them. For some participants, the motiva-
tion behind getting appointments goes beyond the profit they can
make, acknowledging that it is not realistic to expect making a living
out of adjudication. P2 acknowledged that despite getting enough
matters throughout the year, he is aware of adjudicators who com-
plain about receiving only one or two appointments per year and
wonder whether it is worthwhile for them to continue pursuing
CPD training. P4 shared similar concerns and argued that adjudi-
cators who do small adjudications will be more reluctant to invest
in CPD activities. P2 claimed that the lack of workload creates an
ethical conflict as it has pushed some adjudicators to accept invalid
adjudication applications.
P1 pointed out that if adjudication is not a matter of making
money, adjudicators should not be losing money either. Regarding
this matter, P6 stated: “For a low-time adjudicator, it is very diffi-
cult to recoup the cost of the initial certificate in adjudication. The
cost of registration every 3 years is about $700. The cost of CPD is
about $700 a year at the bottom end, so by the time you put all those
things together, it costs more to become an adjudicator than you
will get out of the process.”P7 acknowledged that the possibility
of getting a financial benefit from adjudication was one of his rea-
sons for applying for registration; however, after becoming more
familiar with the process, that is no longer what keeps him engaged
in pursuing CPD training. According to him, there is also the mo-
tivation to keep things fair in the industry. P10, also a full-time
construction lawyer, claimed that there is no positive cost-benefit
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ratio between the adjudicator fees and the cost of the CPD training,
but his motivation lies on the possible opportunity to handle com-
plex matters once promoted to Grade 2 and on the continuity of
learning and making connections in the construction industry. P10
further explained that if adjudication is seen from a pure business
perspective, adjudicators would stop adjudicating as the cost of
CPD training considerably exceeds the fees they receive.
According to P5, also a project manager for an infrastructure
company, adjudicators enjoy the mental stimulation and find it more
rewarding than the money they can get from adjudicating, noting
how, for most of the professionals of this field, their major source
of income is their main job. P8 considered that having the oppor-
tunity to judge a matter contributes to his knowledge in construction
litigation. This perception was also shared by P9, who claimed that
adjudication is intimately linked with his career as a barrister. He
further stated that he is keen to attend CPD sessions as a presenter
to obtain some recognition as an expert in the area, for the sole pur-
pose of getting more work as a barrister. He went on to say, “Ihave
always, as a matter of my own self-discipline, maintained and con-
tinued to maintain a regular reading of the case law, following up on
what’s happening with the law, keeping in touch with the changes of
the legislation, monitoring the cases coming out of all jurisdictions
in terms of security of payment decisions.”
Discussion
This study explored the perceptions of Queensland adjudicators re-
garding the mandatory CPD requirements under the SOP legislation.
It was evident from the findings that establishing a more rigorous
approach to adjudicator registration, appointment, and professional
development has a positive impact on the decision-making process
and the user’s confidence in adjudication. Most stakeholders con-
sulted in a recent legislative review in Western Australia supported
the CPD requirements for adjudicators as a condition for registration
renewal (Fiocco 2018). Most participants of this study acknowl-
edged that CPD training is relevant in keeping them abreast of the
changes in the SOP legislation; however, they advocated for more
engaging and effective CPD activities. The necessity of a CPD
program was also addressed in many studies (e.g., Coggins and
Donohoe 2018;Skaik 2021;Zhang 2009). The study participants,
however, mentioned that even if adjudicators undertake formal CPD
training, they can still err when deciding on jurisdictional matters.
The successful challenges of adjudication decisions in court
have been based on procedural errors that include breach of natural
justice, nullity in the process, or the adjudicator not having juris-
diction to determine the adjudicated matter. Likewise, courts have
identified many poor-quality decisions and questioned the adjudica-
tor’s unsatisfactory performance (Bartels et al. 2014;Skaik 2017c).
This may justify the views of some participants who called for a
component of practice and discussion in the CPD training to im-
prove the reasoning behind a decision and the ability to sustain it.
Likewise, all participants agreed that there are certain skills such as
critical thinkingand the ability towrite sound decisions that can only
be developed through the actual practice of adjudication. This may
imply that the CPD training is not an isolated element in securing
quality outcomes and should be considered as a complementary el-
ement to the relevant professional qualifications and experience of
adjudicators. Murray (2017) conveyed the views of different stake-
holders who advocated the need for adjudicators to have a mixture
of skills and experience as a fundamental contributor to secure con-
sistency and quality in adjudication decisions. The study participants
agreed with this approach in terms of acknowledging the connection
between skills, professional background, and performance.
Nevertheless, the study identified other relevant aspects that may
jeopardize the sustainability of the CPD requirements. These aspects
were categorized as influential factors hindering the effective imple-
mentation of the mandatory CPD policy. Some participants, particu-
larly Grade 2 adjudicators, were critical of the registration process as
it allows incompetent adjudicators to practice after completing only
a short training course, and advocated that the registration process
be toughened up to prevent candidates who are not up to the stan-
dards from being admitted as adjudicators. It seems that the partic-
ipants’concerns are mainly related to large or complex adjudication
matters. In this regard, Coggins and Donohoe (2018) proposed that
adjudicators of large claims should undertake an additional legal
training course tailored for large payment claims. This proposal
seems to have merits as previous research found that 73% of reg-
istered adjudicators in Western Australia were not legally trained
(Yung and Rafferty 2015).
Furthermore, some participants questioned the renewal process
and considered it not rigorous enough as it does not exclude ad-
judicators whose performance is not up to the standards. The par-
ticipants suggested that the renewal process should be based on
a thorough assessment of the adjudicator’s performance. Murray
(2017) recommended the inclusion of registration renewal in any
SOP legislation as an effective mechanism for ongoing monitoring
of adjudicators but did not provide an adequate explanation of how
the monitoring process will look like. The participants in this study
highlighted the importance of the assessment and stressed that it
should go beyond the current CPD activities. The participants fur-
ther argued that gathering the 10 CPD points per year is not enough
to guarantee an adjudicator’s competence to continue practicing.
The participants further suggested considering other criteria such
as an analysis of adjudication decisions, the logic behind the pro-
duced outcomes, and whether adjudicator decisions were overturned
in courts. Such views are consistent with the current arrangement
in South Australia, whereas the Code of Conduct for Authorized
Nominating Authorities (2017) provides: “An ANA must not nom-
inate an adjudicator that has been found, by a court in Australia, to
have made technical errors in performing adjudications unless the
ANA is satisfied that the cause of the error has been resolved.”
The participants were also critical of the appointment process of
adjudicators being controlled by the Registrar instead of ANAs.
The abolishment of the ANAs in Queensland came into effect as
a response to counteract the susceptibility of the system to unfair-
ness (Wallace 2013;Murray 2017). To bring transparency to the
process and increase the trust in the SOP legislation, the appoint-
ment process was shifted to the Registrar within the QBCC; how-
ever, some of the participants pointed out that this change has
affected the number of appointments received, the methodology of
the training, and therefore, the reinforcement of adjudicator upskill-
ing. Some of the participants who had the opportunity to adjudicate
under the ANA system recalled the intensity of the noncompulsory
CPD training they received and its suitability to facilitate producing
sound decisions in contrast to the current CPD training. Some of
the participants referred particularly to the CPD training carried out
by the Resolution Institute (formerly IAMA) that included mentor-
ing and a peer review scheme. Regarding this matter, Zhang (2009)
recalled the CPD requirements set by IAMA and recommended
collaboration with this organization to develop a formal training
program. Collins (2012, p. 132) also commended the education
services provided by IAMA for adjudicators. Therefore, it is clear
that the participants’recommendations to engage reputable training
providers are legitimate to ensure adjudicators can always handle
the complexities of the adjudication applications and deliver more
satisfactory outcomes.
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Furthermore, it was possible to identify a connection between the
adjudication panel size and genuine engagement with CPD activ-
ities. Many participants considered the number of adjudicator regis-
trations has reached a point where there are not enough matters for
all the active adjudicators. The participants argued that when panels
are kept small, adjudicators will be genuinely engaged with CPD
activities and will be constantly writing decisions and, therefore,
enhancing their ability to deliver high-quality decisions. Adjudicators
will be reluctant to invest in undertaking CPD activities if they are not
able to make money out of adjudication by receiving an ap-
propriate referral workload. According to the participants, certain
skills can only be enhanced by the actual practice of adjudication,
such as critical thinking, legal reasoning, and decision writing.
However, the current arrangement in Queensland provides minimal
opportunities for adjudicators to polish their skills and advance. A
common perception among all the participants was the importance
of keeping the panel of adjudicators small as a relevant aspect in
upskilling adjudicators. This empirical finding is consistent with a
recent study that suggested a connection between the adjudicators’
panel size and the quality of adjudication outcomes (Skaik 2021).
Conclusion
This study explored the perceptions of adjudicators regarding the
mandatory CPD policy in Queensland. The study identified many
aspects associated with the effectiveness, sustainability, and fea-
sibility of the implementation of the CPD policy in Queensland.
The study found that the mandatory CPD training is perceived as
relevant in terms of keeping the adjudicators updated about changes
in the legislation, networking, and gaining new knowledge. The
CPD policy is also perceived as a complementary element to secure
quality adjudication outcomes in Queensland, and the compulsory
attainment of the annual CPD points should be balanced with other
improvements in the legislation. The study participants advocated
for more practical components to be included in the CPD activities
including Q&A sessions, open debates about how to approach a
particular decision, and an assessment process to test the acquired
knowledge. The general concern of adjudicators is that, despite the
mandatory CPD policy, they will not be able to upskill unless they
are adjudicating matters continuously as some skills can only be
developed with regular practice.
The study identified some factors influencing the effective im-
plementation of the CPD policy to achieve its purpose of upskilling
adjudicators. The majority of the participants, particularly those
with long experience in Queensland, considered that the CPD pol-
icy and the Registrar behind it are not connected with the realities of
adjudicators in terms of the type of CPD training activities required
for them to upskill. The necessity of better-regulated processes for
registration, appointment, and renewal of registration were identi-
fied as influential factors impacting the effective implementation of
the CPD policy. The participants argued that the Registrar performs
no reasonable assessment of adjudicator skills when appointing
matters and perceived that the appointment system is working as
a rolling list, assigning the next adjudicator available instead of per-
forming a systematic pairing between the complexities of the matter
and the set of skills and background required. In this situation, the
current appointment system creates an atmosphere of distrust, which
makes the mandatory CPD training less engaging and merely a re-
quirement for maintaining registration.
The participants expressed their concerns regarding the sustain-
ability of the mandatory CPD requirements if adjudicators are not
able to secure a reasonable income out of adjudication. The study
concludes that CPD requirements are only realistic if adjudicators
can adjudicate regularly. The study found a general discontent
among adjudicators with the number of appointments received.
Particularly, adjudicators who have been adjudicating in Queensland
for more than 3 years experienced a considerable reduction in the
number of appointments received after the Registrar took over. This
situation may be attributable to having a panel size that is just too
large for the number of adjudication applications lodged each year.
The study found that for Grade 1 adjudicators, the cost-benefit ratio
of participating in the mandatory CPD training is negative. On the
other hand, Grade 2 adjudicators are in a slightly optimal position
as it is possible to assess that at least the investment done is equal
to the fees received. The study also concludes that completing the
CPD training is relatively feasible as long as the training is con-
ducted online. In-person training, however, could make it difficult
to earn CPD points at a rate of 10 points per year. The findings of
this study can apply to similar jurisdictions intended to introduce
mandatory CPD requirements. It is also anticipated that the policy-
makers in Queensland may consider the findings reported in this
study to continue structuring processes and policies that can better
address the challenges hindering quality adjudication outcomes.
Limitations of This Study
The study findings cannot be generalized considering its qualitative
nature and small sample size. This study considered the views of 11
adjudicators currently practicing in Queensland. Eight participants
were Grade 2 adjudicators, and three participants were Grade 1 ad-
judicators. Two Grade 1 adjudicators and one Grade 2 adjudicator
had been practicing in Queensland for less than 2 years. Such an
imbalance of the representation of each group could have led to
biased results. A more heterogeneous group was not obtained pri-
marily due to time constraints. It would be desirable to replicate the
study with a more balanced and diverse sampling group with par-
ticipants from other jurisdictions that have introduced a similar
CPD policy, namely, NSW.
Data Availability Statement
All data, models, or code generated or used during the study are
proprietary or confidential in nature and may only be provided with
restrictions.
References
List of Statutes
Adjudicator Referral Policy, Queensland Building and Construction Com-
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Code of Conduct for Authorized Nominating Authorities, South Australia,
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Continuing Professional Development Guidelines for Adjudicators, Fair
Trading, New South Wales, August 2020.
Continuing Professional Development for Adjudicators Policy, Queensland
Building and Construction Commission, version 1.0, November 2018.
Queensland Building Industry Fairness (Security of Payment) Act 2017.
Queensland Building Industry Fairness (Security of Payment) Regulation
2018.
Queensland Building and Construction Commission Act 1991.
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