'Including by reference' is mentioning a standard published document (or part of one) in an agreement or other document. This makes it part of the new document without writing it out in full. For example, an architect may write to the client and state that the engagement is subject to the Institute's Client and Architect Agreement.
This is a dangerous practice for a number of reasons:
- There can be disagreement about which published document or clause is intended. For example, to which version of the Institute's Client and Architect Agreement was the reference made? (This can be even harder to keep track of if the document is published online and is a 'live' document.)
- When the published document or clause included by reference contains alternative provisions, or has a schedule to be completed, there is a tendency to overlook them, with the result that the reference may be meaningless.
- If the published document itself references yet other documents (as, for example, the National Construction Code (NCC) references certain Australian standards), requirements such as 'in accordance with the NCC' can also be meaningless.
Where provisions of major contractual significance are concerned, it is suggested that instead of including by reference, the provision should either be included in full in the body of the agreement or be referred to and attached as an annexure to be signed by both parties. Include copies of required details contained in trade literature or downloads from internet sources to avoid potential misunderstandings. When including standard or referenced text, drawings or other documentation, copyright restrictions must be reviewed. For example, incorporating significant portions or the full extent of an Australian Standard is likely to be contrary to the terms under which the standard is licensed.
Where inclusion by reference is the only practicable method, such as reference to Australian standards in a specification, care must be taken to quote the correct title, number and date, and, where there are alternatives within the document, those applicable to the project are clearly stated. Note also that where documents such as the National Construction Code reference Australian standards, the most recent version of that standard may not yet be referred to.
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