States and territories throughout Australia are yet to implement several important reforms five years after a landmark report on building quality and safety was released.

In a webinar presented to the Australian Institute of Quantity Surveyors and the Australian Construction Industry Forum, Bronwyn Weir, managing director of Weir Legal and Consulting and co-author of the Building Confidence Report (BCR), outlined progress regarding implementation of the report’s 24 recommendations.

The presentation comes five years after the report was released in 2018.

According to Weir, progress has been mixed.

On the positive side, all jurisdictions have either implemented or are working toward a compulsory code of conduct for building surveyors.

In addition, there have been improvements in accountability regarding performance solutions and performance-based design.

At a Commonwealth level, an implementation team within the Australian Building Codes Board has developed model guidance in respect of a number of recommendations to assist states and territories to implement recommendations in a nationally consistent way

On other recommendations, however, action has been lacking.

For example:

• Whilst several states have broad schemes for mandatory registration of design and building practitioners, none have implemented arrangements that match the holistic nature of the National Registration Framework that was developed by the Australian Building Codes Board (ABCB) to help facilitate a nationally consistent approach toward mandatory practitioner registration (refer recommendation 1 and 2 of the report).
• Only one state (Tasmania) requires building practitioners to undergo compulsory continuing professional development on the National Construction Code (NCC) (recommendation 3).
• No state has instituted any substantive reforms to support career pathways for building surveyors and certifiers (recommendation 4).
• Whilst NSW and Victoria have beefed up regulatory compliance and enforcement action (recommendations 5, 6, 7, 9 and 11), actions from Queensland and Western Australia have been ‘light touch’ and focused mainly on Class 2 apartment buildings.
• Whilst NSW has strengthened the role of fire authorities in building approval processes, no state has instituted a code of conduct for fire safety engineers (recommendation 8).
• Whilst several states already have or are working toward centralised digital lodgment of building approval documents (recommendation 12), Queensland, Western Australia and Victoria have done little in this space.
• Despite much talk in several states, no jurisdiction currently requires that a comprehensive building manual be handed over to owners upon building completion (recommendation 20).
• There has been insufficient action to regulate building product compliance. Only one state (Queensland) has implemented supply chain accountability laws. Meanwhile, there have been no substantial improvements to the CodeMark certification scheme whilst Weir says that amendments to evidence of suitability provisions under the NCC have been too weak.

Speaking on the last point, Weir says this is a significant problem.

“When you think that ultimately, when a building project is finished, what we are left with is the building products – the fact that we don’t have a strong regulatory regime to ensure that they (the products) are compliant and fit for purpose and that the right products are used appropriately is a gaping hole in our system,” Weir said.

“Until we close it off, fix it and take it seriously, we are gong to continue to have problems in our buildings in Australia.”

Weir’s presentation comes five years after the release of the Building Confidence Report, which was prepared for the Building Ministers Forum (now called the Building Ministers Meeting) in 2018.

The report was prepared amid concerns about construction quality and safety following several building fires in the UK (Grenfell) and in Australia along with the discovery of combustible cladding on a large number of apartment complexes.

Momentum to implement recommendations gathered pace when Commonwealth and state building ministers agreed to a national approach to implement the recommendations in July 2019.

According to Weir, progress varies across jurisdictions.

At the front of the pack, New South Wales has undertaken a major reform process led by determined Building Commissioner David Chandler.

Among other things, that state has introduced mandatory registration for engineers and designers, requirements for design documents to be certified by registered practitioners, requirements for declared designs to be uploaded onto the state’s e-planning portal and new fire safety reforms.

The state has also increased compliance and enforcement with a highly proactive audit program.

Moreover, New South Wales has gone above and beyond report recommendations in several areas.

Further initiatives include micro-credential TAFE courses being offered to practitioners, risk based intelligence for audit/compliance purposes, a new rating scheme for developers and development of a 10-year insurance product for building owners.

In other states, however, progress is lacking.

Whilst South Australia has been reforming its planning system, the state has given less attention to improving building approval process. Accordingly, its efforts to implement BCR reforms have been restricted to a limited number of initiatives.

In Western Australia, meanwhile, the state has released four discussion papers about different areas of reform – the last of which was released in January 2021 (a fifth is expected soon). However, there has been little concrete action to implement change other than a decision announced in April 2022 to implement mandatory registration of engineers over the next three to five years, a draft code of conduct for building surveyors and a published audit strategy.

According to Weir several factors are holding back action.

These include:

• A mistaken belief in some states that they have addressed recommendations when in fact they have not adequately done so.
• A lack of transparency and accountability arising from the absence of any obligation for states/territories to report progress on recommendation implementation. As a result, there is little pressure to implement all recommendations and reasons for jurisdictions acting on some recommendations but not others are unclear.
• Using up of reform ‘tolerance’ on certain priorities such as cladding, trade regulation, security of payment and consumer protection/warranty issues. Whilst these are important, Weir says some of these issues are ‘bottom of the cliff’ matters that deal with end consequences of unsatisfactory work. A focus on these issues may have detracted from efforts to address quality problems at the source and to prevent compliance issues from occurring.
• Some individual state-based reviews have referred to the Building Confidence Report but have not necessarily led to BCR recommendations being implemented.
• Some states may have waited for the completion of a program undertaken by the ABCB to produce national models and guidance in respect of various recommendations. That work finished more than twelve months ago and has now provided states/territories with tools to implement recommendations in a nationally consistent manner.
• Finally, implementation of report recommendations would require a substantial increase in regulator funding, resources and technical capability – a problem as Weir says many regulators are chronically underfunded.

Going forward, Weir expects some progress over the next twelve months.

In New South Wales, further planned reforms over coming months appear to have bi-partisan support.

Meanwhile, there are hopes that the work of an expert panel in Victoria will begin to see changes flow through in that state and that recent consultation in Western Australia may translate into tangible action.

Another area of action is further investment in digital platforms and data driven regulatory approaches. In particular, tools such as the iCIRT developer rating tool and decennial liability insurance (10-year insurance for multi-storey apartments) in New South Wales are gaining popularity and may see uptake in other jurisdictions.

Weir says the pathway going forward will be interesting to observe.

“I think the reality is that we will still see the (continued) implementation of the BCR for quite some time,” she said.

“Whether we will ever see a full implementation across most of our jurisdictions remains to be seen.”

BCR Recommendation Implementation: Current State of Play:

(image courtesy of Weir Legal and Consulting)