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 The Australian Uniform Building Regulations Coordinating Council (superseded by the ABCB) in 1991 commissioned a project called the National Model Building Act.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.