With the recent release of the updated AS4000:2025, for the first time in over 28 years, many stakeholders in the construction industry are questioning if there is an impact on their risk profile when using this updated AS4000:2025.
The simple answer, by Standards Australia, is there has been no significant change to the allocation of risk. Notwithstanding this and in any event, before using the AS4000:2025, or an older version, one should still consider if the contract you are using addresses your appetite for risk.
Standards Australia have published a list of the main changes, accessible at Standards Australia updates AS 4000:2025 General Conditions of Contract — Standards Australia and include:
- the inclusion of a simple Formal Instrument of Agreement
- inclusion of provisions dealing with legislative obligations under A New Tax System (Goods and Services Tax) Act 1999 (Cth), Personal Property Securities Act 2009 (Cth)
- appointing the Contractor to the role of Principal Contractor under work health and safety legislation
- simplified and consolidated definitions and terminology including using more modern language
- use of consistent language for time periods (e.g. using “as soon as practicable” rather than a range of terms)
- allowing for a Date of Practical Completion prior to the date of the Certificate of Practical Completion
- provisions for greater flexibility in choosing a dispute resolution forum that best meets the business needs
- including a régime for assessment of delay costs payable to the Contractor
- alignment of the insolvency provisions with current legislation
Failing to appreciate the legal nuances of the AS4000 may mean you have negatively and unknowingly absorbed more risk, which could ultimately increase your costs and exposure on a project. Careful consideration is required before using the AS4000:2025 or the AS4000:1997.
Transitioning from the AS4000:1997 (older version) to the updated AS4000:2025 — What to do next?
- if you were using the AS4000:1997 as your template standard form contract (amended or unamended), contact Standards Australia to enquire about changing your existing licence to be used for the AS4000:2025
- have a transition plan migrating to use of the updated AS4000:2025. Changing to the updated AS4000:2025 has some benefit because fewer departures may be raised due to updates in law, use of modern and more concise language providing a more readable and understandable contract
- contact an experience solicitor to assist you with understanding the provisions and making any necessary amendments
Notwithstanding the amendments, Swaab does not recommend using the unamended AS4000:2025 without careful consideration of its provisions, especially if you are intending to use the AS4000 for significant or complex projects.
Swaab can assist with amending or reviewing the AS4000 to accurately reflect your commercial position and your appetite for risk (if required), including the provisions on:
- insolvency, including rights to terminate or take work out of contractors hands
- warranties and indemnities
- recourse to security
- extension of time regimes, such as setting stricter time limits eg. notification of Latent Conditions under clause 25 (AS4000:2025)
- not allowing practical completion to be achieved before the date that a Certificate of Practical Completion is provided
- check that limitations of liability and liquidated damages
- the method of dispute resolution
- implications of including the Personal Property Securities Act 2009 (Cth)
- prepare tailored provisions for legislation which is State or Territory specific. For example in New South Wales Swaab has expertise in preparing clauses on the Home Building Act 1989, Strata Schemes Management Act 2015, Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020, Design and Building Practitioners Act 2020, Building and Construction Industry Security of Payment Act 1999, Competition and Consumer Act 2010 (Cth) – Schedule 2,
Contact Swaab’s experienced team of lawyers Construction Law in Sydney | Swaab, led by partners Helen Kowal, Partner | Swaab and Mark Glynn, Partner | Swaab to discuss or get assistance with changes to the AS4000 or any Australian Standard contract.
Want to read more on selecting and editing construction contracts? Follow the link to our recent article: Construction contracts are more than just a document — remove… | Swaab
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