Building Controls Across Australia’s Many Regions 12

Friday, July 29th, 2016
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When I addressed the English Forum for Construction Law Reform at an address chaired by the one time English Minister for Construction Sir Tony Baldry MP in 1997, I made reference to the “eight countries of Australia” when discussing our country’s building control regime.

I gave this description when asked how I would describe the Australian building regime. I responded “how would you describe the European building regulatory regime?”

The retort was met with incredulity, and although the person who aimed the question didn’t say “you idiot,” his intonation when he said “there isn’t one regime, each country has its own building legislation” intimated that he thought I was bereft of a critical mass of the IQ department. My final comment was that “we are the same sir, just the same, just like Europe – when it comes round to building legislation, each jurisdiction is a sovereign, autonomous jurisdiction that fashions and runs its own building regulatory regimes.”

But unlike Europe with 750 million people, Australia in population terms is tiny (24,000,000). In fact, both Tokyo and Shanghai have larger populations than Australia – 34 million and 24.2 million respectively. So it is not surprising that there has been for many years a vocal chorus of industry bodies and professions urging harmonisation. They say we are too small a country to shoulder the burden of so much duplicatory regulation. This was one of the reasons COAG was established – to have a crack at cross-jurisdictional harmonisation. But COAG didn’t get any liftoff, and it petered out.

Historians of modern day  antipodean building control will know that the closest the country came to harmonised building control was in the early 1990s. The Australian Uniform Building Regulations Coordinating Council (superseded by the ABCB) in 1991 commissioned a project called the National Model Building Act.

In the early 1990s, there was a strong push for uniform harmonisation that emanated from the Special Premiers Conference (“SPC”, the predecessor of COAG, and chaired by one of Australia’s’ longest serving Prime Ministers, Bob Hawke). The term cooperative federalism was coined to describe the political predilection of the time the logic being essentially this: a tiny country like Australia (in population terms) couldn’t afford the inefficiencies, impediments and bottlenecks that flow from the eight silos of government regulating the same of turf.

There was a view that national industries and national professions needed national acts of parliament to regulate what were/are essentially national industries and professions. This was the logic that prevailed during the era of Australian cooperative federalism, and there was a healthy appetite for regulatory uniformity. Those who clamoured for regulatory harmonisation had found their Camelot. But in keeping with the message of the fable, Camelot didn’t last and the summer of cooperative federalism, so many years in the making waned by the mid-1990s.

One of the legacies, however, was the NMBA and the reforms that it facilitated – 10-year liability capping, proportionate liability, the establishment (for the first time ever) of practitioner registration, and mandatory qualification regimes. These have withstood the test of time and are now part of the fabric of modern day building control. Whether one agrees with, is enamoured of, or dislikes the reforms, nothing can detract from the fact that in the post-NMBA paradigm, there was far more cross jurisdictional regulatory harmonisation than at any time hitherto.

So where are we now?

All jurisdictions have introduced private certification, albeit in different guises. NT, NSW, Queensland and Victoria  for nearly three decades have adopted a totally privatised alternative. Other jurisdictions have adaptations where the demarcation between privatised building approvals and local government is more diffuse. In the ACT, for instance, although the inspection regime is essentially privatised, the Crown issues the occupancy permit.

I am a lawyer and regardless of whether I am in Victoria, the NT, England or NZ, I am called a lawyer. This is not the case with building surveyors. There is no national or uniform professional title. You have private and municipal building surveyors in Victoria, yet in NSW the same professionals are called accredited certifiers or principal certifying authorities.

In NT and Vic, all principal building practitioners (engineers, building surveyors, inspectors, builders and plumbers) have to be registered. Not so in NSW, where only building surveyors – I mean “accredited certifiers” – and residential builders have to be registered. As to the other states and territories, you will have to look for yourself. As I said, it’s eight countries and it’s pretty hard to keep abreast of each jurisdiction’s metamorphosis.

Ten-year liability capping is uniform throughout the country, as is proportionate liability. But in some jurisdictions, all building practitioners have to be insured by law – NT and Vic for instance. In NSW, meanwhile, only certifiers – sorry, accredited certifiers – and residential builders have to be registered.

Insurance is mandatory for building practitioners in Victoria and the NT, but in NSW only certifiers and residential builders are required to be insured.

In some jurisdictions, there are dedicated registration bodies like the Building Professions Board in NSW. Other jurisdictions like Victoria are dismantling the like as registration is consumed by the Victorian Building Authority.

The building control regimes in the states and territories continue to reform and evolve, but they do so independently of one another in keeping with their sovereign prerogatives and the “eight countries of Australia” status quo. So the concept of state and territory sovereignty underpinned by autonomous self-determination is very much alive and well and cooperative federalism is pretty much passé.

Yet one still hears the lament of those pining for harmonisation, uniform qualifications and registration regimes, microeconomic reform and the cutting of border demarcated red tape. So, will it ever happen?

I don’t believe it will, because the eight countries of Australia are here to stay – you could say they are set in concrete. And in our back yard, the building sector, I don’t think there will ever be a Model Building Act Mark 2. Brexit has placed us on notice that sovereign jurisdictions appear to be moving away from harmonisation even though the economics of doing so are not compelling. Sovereign jurisdictions are opting for self-determinism, and Australian building control is not out of kilter with the prevailing currents.

For those who rue the lack of regulatory harmonisation in Australia, the take out is this: unless our policy makers are once again willing to embrace cooperative federalism, uniform regulation is but a pipe dream and the phenomenon of the eight countries of Australia will gain even greater currency.

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  1. Kim lovegrove

    Mr Boughton I said "one of Australia's longest serving Prime Ministers". Although I am a New Zeslander by birth I am perfectly aware of the length of tenure of the highly regarded Sir Robert Menzies. Clarifications aside, It would nevertheless be useful for you to provide us with your insights as a licenced builder in a number of jurisdictions and I mean this sincerely and I and no doubt the other readers do indeed look foward to hearing same.

  2. David Chandler

    Kim, great conversation. This harmonises with part of my write up of the Melbourne Construction technology Summit. See: Standards and compliance is a big deal and solutions will occur. These will cut across the multi-jurisdictions you correctly point to. I agree, the harmonisation of the 8 countries of Australia was finally dealt a blow by Tony Abbott at his first COAG meeting and this will not reignite. The continuing uncertainties of which standard, deemed to comply certification and independent certifications will not go away. In a modern construction industry the best suppliers will soon start to see the advantage of leaving lowest common denominator regulatory regimes behind. Clients, their financiers and insurers are now confronted with a new construction dynamic – pieces and parts coming from everywhere – that need payment before they start their journey to site. Gone will be the days of work only being valued when fixed on site. The same will apply to design as it becomes more embedded in the pieces and parts. I will be doing an article on this for August in Sourceable. But you may find the 'chain of custody' concept mentioned in my Construction technology gives early pointers to the 'way-round' that up and coming industry innovators are finding to solve these challenges. Amazing when the public loose confidence in failed institutions a solution pops up – just like Uber and Airbnb. Lets talk soon. DC

  3. Matt Campbell

    Interesting article Kim. The 'state-of-origin' approach is also seen in other industries such as medical and legal. One would think that in today's modern times some minimum level of uniformity would be both beneficial for all and not too hard to achieve.

  4. Peter Jolly

    s one of the sad and bizarre facts that bedevils Australia that it is a nation comprised of many separate and dissimilar nations, if you include the states, territories and the likes of Norfolk Island etc. No wonder our competitive edge is diminished on the international stage. Too many parochial interests with influence over Governments that are driven by and cave into pressure groups and media cycles. So sad is it that they cannot even manage to keep asbestos building products out of the country; despite the scandalous history of this evil product in the lives and minds of the Australian people. They can however apparently find squillions to fund poorly run third world refugee camps on remote pacific islands. Sad really.

  5. Lyall Dix

    Brings back many memories Kim
    We came within a hairs breadth of getting the Model Act up as a Nation Act for the Country. I remember vividly you herculean efforts in obtaining the Standing Committee of Attorney General approval for one of the jurisdictions to draft the template Act. This being carried out by NSW administration under the close supervision of Dennis Murphy QC the then Chief Parliamentary Counsel with us as his instructing officers, both from Victoria . The drafted Model Act had strong endorsement from the building control departments of five of the seven jurisdictions and still couldn't get over the line nationally just reinforces how hard it is. Couldn't agree more with you that the moment has now passed.
    The glue that keeps it all together now is the BCA. Remember that comment from CEO of the Sweden's largest building contractor (one of the largest construction firms in Europe) "that a fully performance based building regulatory system can increase the efficiency of the construction industry by 10%". The Model Act fully encompassed such a regime.
    Looking on the bright side most of States and Territories have adopted many of the themes of the Mode Act but this will drift with time as happened previously with the Australian Modell Uniform Building Code before the adoption of the BCA.

  6. Rob Haakmeester

    Tasmania requires building practitioners to be qualified, insured, experienced and to undertake continuing professional development. The classes of building practitioners are:
    Builder classes:
    • Builder (low rise, medium rise or open)
    • Builder (construction manager)
    • Builder (fire protection services)
    • Demolisher
    Design classes:
    • Architect
    • Engineer
    • Civil Designer
    • Building Designer
    • Designer Specialising in Building Services
    Building surveyor classes:
    • Unrestricted
    • Limited

    Registration is renewed annually and requires the submission of evidence that the practitioner has met the requirements.

  7. Kim Lovegrove

    David I always like it when you chime in, your comments are always poignant and often courageous. Independent thought in these more sanitised times is so very, very important. There are very real challenges ahead in terms of getting the oarsmen rowing in unison. No easy task and one hopes that a champion emerges at some stage to reignite cooperative federalism. He or she would need to be charismatic, courageous, a visionary much less long in the tooth than the likes of I and in possession of deft negotiation touches. Take care and keep on trucking.

  8. Kim lovegrove

    Thank you Rob for taking the time to map out the list of registrants in Tasmania. It would be great if someone from the other jurisdictions such as Queensland, ACT, WA and SA could join this stream and likewise map out the list of registrants. Furthermore folks if you could take the time to also pop in a brief synopsis in this stream of where your state and territory building control regime differ we can turn this commentary stream into a useful resource in its own right. I really encourage readers from other jurisdictions to do so. Thank you for joining the conversation too Lyall and Peter.

    • Peter Hope

      Building regulation has been an interesting journey, perhaps not unlike building booms and busts. We also have the Queensland Development Code of building standards such as private health facilities etc., in addition to the NCC.
      Classes of building practitioners in Queensland are:
      • Building Certifier licence (three categories)
      • Builders (four categories)
      • Builder Restricted (four categories)
      • Building Design (four categories)
      • Completed Residential Building Inspection (pre-purchase AS 4349)
      • Trade Contractor licences (thirty six categories)
      • Occupational and provisional plumbing and draining licences (five categories)
      • Restricted plumbing and draining licences (eight categories)
      • Fire protection licences (twenty four categories)
      Building complaints on Residential Construction Work in Queensland represent approximately 5% of all building approvals. Therefore building controls can be said to be effective, but a question, are they adequately efficient, in terms of the market cost of building controls (housing affordability).

    • Rob Haakmeester

      I moved from Tasmania to the NT a few years ago but have not registered as a building practitioner here.
      Looking at the NT Building Control Board web site one sees that the categories of building practitioners in the NT are:
      • Building Contractor Residential (Restricted)
      • Building Contractor Residential (Unrestricted)
      • Building Certifier (Residential)
      • Building Certifier (Unrestricted)
      • Certifying Engineer (Hydraulic)
      • Certifying Engineer (Mechanical)
      • Certifying Engineer (Structural)
      • Certifying Plumber and Drainer
      • Certifying Plumber and Drainer (Design)
      • Certifying Architect

  9. Kim Lovegrove

    Thanks for contributing Peter, valuable input and of use to policy makers in Australia engaged in comparative analyses. It'd be good if a building surveyor from ACT would chime in and WA for that matter. I can then weave all of the info into a further piece on point for sourceable.

  10. Steve Boughton

    Kim I did start reading this with interest whilst considering all the wonderful input I can give to the discussion as a licensed builder in three states and licensed building designer where applicable. But mate, I got bogged down when I read your comment about Australia's longest serving PM. What happened to Sir Robert Menzies 18 years and 160 days in the office, also John Howard 11 years and 267 days in office ? Bob Hawke was in office for 8 years and 284 days. I ask myself, what is your agenda sir?