Earlier this month, the Tasmanian government announced an overhaul of its building control regime and a review of its Building Act. The current Act largely reflects the National Model Building Act, which in turn is based on concepts of the early nineties. The NMBA was developed under the auspices of the AUBRCC, the predecessor of the Australian Building Codes Board.
Tasmania has the opportunity to get it right and adopt world best practice in building control. First, however, the government needs to be clear about the purpose of reform, and ask itself whether or not the Act as it stands is truly broken and if not, why it needs to be fixed. Reform for reform's sake is pointless.
In March 2013, I participated as an offshore expert in a Japanese law reform think tank charged with reforming the Japanese Building Act. The first thing I warned against was reform for the sake of it. There had been a national controversy on account of the dubious practices of an engineer who had generated some designs that proved to be deficient for a number of buildings. Fortuitously, the issue came to the attention of regulators before there was any loss of life, rectification orders were issued and a potential calamity was averted. The gentleman in question was jailed as the Japanese building regulations have the power to impose criminal sanctions.
A key issue revolved around whether or not a single errant act constituted system failure and whether a wholesale review was indeed necessary or ran the risk of tossing out the baby with the bath water.
Nevertheless, I was invited to proffer some views on ‘world best practice’ building regulation based upon my experience in Australia and advise on areas where Australia and NZ building regulations were considered wanting. The advice was as follows:
- With respect to private certification, take away the power of certifiers to sanction alternative solutions.
- In order to avoid underquoting and fees dropping to the point of standards being compromised, regulate fees for certification services and impose a minimum charge out rate floor below which certifiers are not able to descend.
- Introduce a peer review system for the approval of performance based design scenarios. The peers would need to be independent, government approved and well respected.
- Boost auditing powers and resources and adopt a user pays auditing system based upon a model similar to that in the legal profession whereby any solicitor operating a trust account is subjected to mandatory annual audits, the solicitor pays for the auditor and the auditor is independent and nominated by the law society. Whilst a 'user pays' system does cost builders more, reluctance on the part of governments to increase funding for auditing means this is in reality the most practical and feasible approach.
Tasmania would be well advised to take on board these concepts because private certification regulation in Australia is in dire need of regulatory overhaul and no regime has got it right.
It is also critical that Tasmania looks at regulatory harmonisation. At the moment, state and territory governments throughout Australia are moving away from this and reverting back to jurisprudentially introspective silos. Further, a lack of emphasis on international best practice research has precipitated an introspective approach to reform and led to some disquiet - Victoria being a case in point where controversy surrounding building control has garnered considerable public attention in recent years.
Law reformers in NZ and Australia should look toward countries like Japan and Singapore. When the Japanese reform their legislation, they appoint a panel of experts who are charged with developing recommendations. They engage in exhaustive international best practice comparative analyses. Further, their preoccupation is much to do with studying system failures and they intensively cross examine experts on the rationale behind every regulatory concept.
Singapore, too, is adopting the Euro building code as a template and dispensing with the reliance on the traditional British based code. Why? Because it is after best practise and international harmonisation. Australia and NZ don't want to be left behind simply because their building regulations are myopic and ‘antipodean-centric’ and should have a harmonised approach to building control. But first things first, the likes of Tasmania need to harmonise with other Australian jurisdictions. In this regard, it is critical that the ABCB revamps its policy capacity so that it can have a seat at the cross jurisdictional harmonisation table.
Tasmania would also be advised to use experienced micro economic reformers with a proven track record. The Japanese approach of unsentimental non-politically influenced critical appraisal is most worth considering.
On a final note, it should not be assumed reform in itself will deliver improved building control.
In Latvia, a tragic roof collapse last year underscored failures in building control for which heavy pruning of the national building inspectorate may have been a factor. That demonstrated how the reform does not ensure better control – especially where the reform is largely being driven by cost cutting considerations.