In any area of regulation, Australia can learn draw significant lessons not only from various approaches adopted throughout different jurisdictions around the country but also from experience around the world.
The construction industry is no exception, and based on my experience, at least 15 core elements stand out in any best-practice building sector regulation regime.
1. Dedicated Building Act
An example of what not to do can be seen through the Environmental Planning and Assessment Act in New South Wales, which essentially represents a disorganised patchwork of planning, building and local government regulations which do not work together in a harmonised way.
Instead, far better approaches can be found in New Zealand, Japan Singapore and Victoria, where specific Building Acts deal specially with building regulations in a deliberate and effective manner.
2. Strong building consent/occupancy permit regime
Under no circumstances should work be allowed to start without permits. Nor should permits be allowed to be issued until plans and specifications comply with building regulations, relevant technical codes and standards, and buildings should not be able to be occupied until occupation permits are issued.
3. Licensed officials only
Only licensed and suitably qualified building surveyors should be able to grant statutory permits and certificates.
4. Building officials as creatures of statute
Building officials play a crucial role in building control. Their profession should be respected accordingly and they should be given statutory powers regarding inspections and issuing of enforcement and non-compliance notices and orders.
5. Mandatory inspection powers
There must be mandatory inspection powers, where officials are called upon by Act of parliament to inspect building work and either approve such work or otherwise as appropriate.
6. Robust licensing regime
All main actors in the building control system – builders, engineers, architects, draftspersons, building inspectors, surveyors and even planners – should be required to be licensed and registered under a strong licensing regime.
7. Strong licensing body
Likewise, a robust licensing body must be in place to register, discipline and de-register practitioners as appropriate.
8. Mandatory Practitioner Auditing
To ensure their practices are up to standard, all licence holders should be required to undergo yearly audits. These should be paid for by the licence holder but the auditors should be accredited by the registration body.
9. Power to Prosecute
Effective powers must be in place to ensure those responsible for non-compliant work can be prosecuted and emergency repairs can be performed without undue delay.
10. Mandatory insurance
Insurance is the only means by which consumers are guaranteed compensation for unsatisfactory workmanship. It should not be optional for any building practitioner.
11. Clear liability sunset periods
Limitations regarding time-frames in which legal proceedings for defective building work must be initiated should be clearly set out. Ten years from the day the occupancy permit is issued is ideal.
12. Fair apportionment of liability
Current systems across a number of jurisdictions in Australia which apportion liability among multiple parties and limit the liability of individual defendants to their judicially assessed share of overall responsibility are sensible and fair.
No one should be made to pay more than the share of the liability for which he or she is responsible.
13. Building Codes
Building Acts must be supported by strong Building Codes which set out the full gamete of technical requirements and rules. These should inter-operate with the Act in a manner which is perfectly seamless and completely harmonious.
14. Fast, cheap dispute resolution
Building Acts should specify fast and cost-effective dispute resolution procedures in theatres which are specifically dedicated to building disputes and which have the power to appoint expert witnesses who are suitably qualified to identify and quantify rectification costs.
15. Prescriptive and performance or objective based design solution pathways
Provided the solutions are appropriately sanctioned by independent peer review panels, performance building codes which allow the choice of prescriptive and performance or objective based design solution pathways have merit.