Reform efforts to ensure the quality and safety of buildings across Australia are lacking across several areas, a new analysis has found.

The Australian Construction Industry Forum has released a comprehensive review of progress across states and territories in implementing the 24 recommendations which are contained in the Building Confidence Report (BCR) that was prepared for the Building Ministers Forum (now called the Building Ministers Meeting) by Professor Peter Shergold and lawyer Bronwyn Weir.

The review comes five and a half years after the report was published in April 2018.

Overall, the review found that there have been areas of progress. Indeed, all states/territories have at least partially implemented most recommendations.

Nevertheless, it highlighted that many recommendations are yet to be completely addressed.

This is the case even though the report recommended that all recommendations be implemented within three years – a deadline which expired in 2021.

Indeed, of the 20 recommendations which were to be applied at a state/territory level, the report found that:

• No single recommendation has been fully implemented across all jurisdictions. The closest any recommendations are to being fully implemented are Recommendations 8 and 16 (engagement with fire authorities during design and requiring building surveyor approval for amendment of documents during projects). These recommendations have been fully implemented across five jurisdictions.
• There remains a lack of consistency in building practitioner registration frameworks across states and territories. Whilst some jurisdictions have robust frameworks for building practitioner registration, there is no consistent framework which applies across jurisdictions that addresses the registration of practitioner categories which are outlined in Recommendation 1 of the BCR. As such, an agreement in the BCR Implementation Plan in March 2019 to implement the registration of building practitioners in a naturally coordinated way has not been delivered upon. This is despite publication of a National Registration Framework for Building Practitioners by the Australian Building Codes Board in December 2021. The framework was designed to assist jurisdictions in developing robust registration schemes in a manner which is consistent across states and territories.
• Flowing on from this, there is a lack of national consistency in requirements for building practitioner registration across jurisdictions. Despite the report’s recommendation for consistent requirements to enable practitioners to work across jurisdictional boundaries without additional registration processes (Recommendation 2), there has been no development of a nationally consistent registration scheme. All jurisdictions except for Queensland have adopted an Automatic Mutual Recognition scheme that was introduced in 2021 and allows some licensed practitioners to operate freely across different states. However, progress regarding implementation of this scheme remains patchy and the scheme comes with additional requirements for practitioners in some states.
• Only one state (Tasmania) has fully implemented a recommendation to require all building practitioners to undertake Continuing Professional Development on the National Construction Code (Recommendation 3).
• No state has fully implemented the recommendation to establish formal mechanisms for collaborative and effective partnerships between state government regulators, local governments and private building surveyors as per Recommendation 5 of the report.
• Only one state (Victoria) has fully implemented a recommendation to publicise an audit strategy for the regulatory oversight of commercial and multi-story residential buildings with annual reporting on audit findings and outcomes as per Recommendation 7 of the report. Furthermore, the report notes that whilst all jurisdictions conduct audits on construction sites and/or practitioners, some do so only in response to complaints or investigations. There is also a lack of transparency among some jurisdictions about how sites and/or people to be audited are chosen.
• Only one state (NT) has implanted the recommendation to require genuine third-party review for specified components of designs and/or certain types of buildings such as buildings which are structurally complex and/or involve a high level of risk to life in the event of building failure as per recommendation 17 of the report. As many as five states – NSW, Qld, WA, SA and ACT – are yet to make even partial progress on this recommendation.
• Only two states – New South Wales and Victoria – have introduced legislation to require the provision of comprehensive building manuals for commercial/multi-story residential buildings that should be lodged with the building owner and made available to successive purchasers as per recommendation 20 of the report. As many as five states are yet to even partially implement this recommendation.

Published in 2018, the Building Confidence Report was prepared for the Building Ministers Forum (now called the Buidling Minsters Meeting or BMM) by Professor Peter Shergold and lawyer Bronwyn Weir.

The report was prepared following London’s Greenfell fire in 2017 as well as the discovery of combustible cladding on thousands of buildings across Australian cities.

Initially, responses were encouraging albeit with progress being slow.

In March 2019, the nation’s building ministers published a joint implementation plan to guide implementation of the reforms.

In July that year, the ministers agreed to adopt a national approach to implement the report’s recommendations, and created an implementation team within the Australian Building Codes Board (ABCB) to develop a national framework to support the implementation of recommendations in a nationally consistent way.

Subsequently, the ABCB engaged in public consultation and developed model guidance to assist states and territories in implementing Recommendations 1 to 11 and 13 to 22

Since then, however, progress in implementing the recommendations has been patchy.

By far the most active reform effort has come from New South Wales.

Led by Building Commissioner David Chandler, the state is implementing a six-pillar program of reform. This involves new laws to drive assurance and accountability in design and construction; a new rating tool identify trustworthy buildings and focus regulatory efforts upon the riskiest players: working with educators and industry professionals to help to upskill the industry workforce; supporting industry to adopt better and fairer construction contractors; leveraging digital platforms and tools to deliver transparency and accountability across industry; and research and data collection to ensure that reform efforts are evidence-based and suitably targeted.

All up, the state has fully implemented eight of the 20 state-based recommendations and has partially implemented a further 11 recommendations.

In Victoria, reform has been slower and less ambitious.

On paper, the state has fully implemented 11 of the BCR recommendations.

In 2020, the Victorian Government established an expert panel to undertake a comprehensive review of the state’s building system under a three-stage process of reform which is expected to culminate in the development of a new Building Act.

However, progress has been slow and timid.

Thus far, only the first stage of recommendations from the expert panel review has been released.

Even then, only some of these recommendations are being implemented through the Building Legislation Amendment Act which was passed earlier this year.

Finally in Western Australia, the state has undertaken a range of consultations on builder registration and building approval processes.

Thus far, however, the state has only fully implemented one single BCR recommendation (Recommendation 10 relating to a code of conduct for building surveyors). Aside from this, its only other significant action has been the introduction of a mandatory registration scheme for engineers.

Furthermore, transparency and accountability around reform implementation has been poor.

As part of Recommendation 24, the BCR recommended that each jurisdiction should report annually on progress regarding implementation of the report’s recommendations.

However, no update on implementation progress has been provided by governments since a Jurisdictional Update was published in December 2019.

Bronwyn Weir, co-author of the Building Confidence Report, issued a scathing assessment of implementation progress.

“Implementation of the BCR has been slow and inadequate, especially in light of the increasing desire of governments to speed up the construction of new housing,” Weir said.

“With the exception of NSW, most jurisdictions have cherry picked a few BCR recommendations to implement with the can being kicked down the road on anything more meaningful. There are about six recommendations which are in place in three or fewer jurisdictions.

“Although all jurisdictions agreed to have the ABCB undertake a significant body of work to develop a ‘National Framework for Implementation’ there were no next steps put in place at the conclusion of the ABCB’s work.”

Going forward, Weir nominates several areas where action is needed as an immediate priority.

First, it is imperative that regulators adopt a proactive strategy of auditing buildings, publishing details of the audit strategy and reporting on outcomes as per Recommendation 7 of the BCR.

This is critical as identifying defects during construction enables defects to be rectified more quickly and cheaply, fosters better leaning for builders and tradespeople and brings accountability to developers and builders whilst they have control of the site.

Thus far, however, uptake of this recommendation has been limited outside of NSW – which has adopted a well-publicised audit strategy. Victoria and Western Australia are reporting only a small volume of audit activity whilst no other state has publicly reported on any audit activity.

In addition, Weir would like more action on establishing central repositories for digital building  records and digital building manuals (Recommendations 12 and 20) along with effective laws to enable regulatory action to be taken against those who supply unsafe or non-compliant building products.

On the former point, Weir notes that Tasmania and South Australia are moving to have building permit information stored on their digital planning platforms and that Victoria and NSW have both passed legislation to enable the requirement of building manuals (although the precise commencement date for these requirements remains unclear).

On the latter, she says that whilst Queensland already had legislation in place regarding the supply of non-compliant products and NSW has a bill in Parliament in this area, there has been no action to prevent unsafe products from being used in any other state.

At the same time, Weir says evidence of suitability obligations within the National Construction Code (NCC) are still inadequate and there has been no movement in mandating third party conformity assessment for higher risk building products as is required in many other developed countries.

Without change in this area, Weir warns that Australia will continue to be ‘a dumping ground for non-compliant building products’ whilst ‘those trying to do the right thing will be undercut by inferior products’.

Asked about political appetite for reform, Weir says that the BCR continues to inform policy development and the document is still frequently referenced during industry and government discussions.

But she says that most jurisdictions outside of NSW have avoided change which is perceived as being too large or too difficult.

In addition, there has been a perception that full implementation of the recommendations would result in higher up-front costs that would be difficult for the industry and politicians to bear at a time of housing supply shortages.

This, Weir says, is a misconception. Indeed, she says the real cost of defects which are discovered In new housing are ‘painfully debilitation and financially and emotionally ruining for owners’.

“I think the BCR continues to inform policy development and I still hear many references to BCR in industry and government discussions.” Weir said.

“But as noted above, most jurisdictions have avoided change that is perceived as too big or too hard. In light of housing supply shortages, the perception of increased cost at the front end (which some argue BCR implementation will bring) seems to be unbearable for politicians, even though we know that the real cost of new housing with defects is painfully debilitating for those consumers that find themselves with defective homes.

“Research done by Victorian (CSV)  and NSW governments since BCR was published has confirmed unacceptably high rates of defects in about 50% of apartment buildings. Common issues include water ingress, mould, compliant fire safety features and serious structural defects.

“Unfortunately, it appears inevitable that the legacy of this next housing boom will be a high % homes with defects, clogged up tribunals and courts and more emotionally and financially ruined owners.”

Dr James Cameron, Executive Director, ACIF, said the review aimed to determine how much progress has been made.

Cameron offered a more generous appraisal of reform progress to that of Weir and says that governments and public servants deserve credit for the progress which has been made.

But he urged governments to ‘keep up the good work’ and not ‘take their eyes of the ball’ in pursuing further reform efforts.

“Australia can be proud of its built environment and construction industry,” Cameron said.

“The implementation of the recommendations of the Building Confidence Report strengthens both.”

“We have been working on this review for around twelve months, and so it is satisfying to have it finalised and to release it into the public domain.”

“The review is a wealth of information on Australia’s building regulatory landscape. We hope that governments and building regulators take note of the review and continue to implement the recommendations of the Building Confidence Report.

“We will be advocating for this outcome.”

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