Building control in parts of Australia has become a staple of front page broadsheet controversy over the last couple of years.
New Zealand likewise has not been immune what with the multi-billion dollar wash-up from the leaky building syndrome, which left behind a legacy of fraught building regulatory design. The traumas of the Victorian Building Commission and public disquiet over private certification in the Southern States have also made fertile copy for the press.
So what is the problem with the design of modern day Antipodian building control and how does one fix it?
The malaise could be due to combination of factors, sometimes it’s reform for reform sake, sometimes it’s knee-jerk reform, sometimes it’s pressure from sectors to reform, but the net effect is the proverbial “tossing of the baby out with the bath water.”
It is also a failure to pursue world’s best practises and benchmarking with a reluctance to embrace cross-jurisdictional best practice regulatory harmonisation. Another problematic ingredient is a reluctance by some jurisdictions to engage law reform consultants with a background in micro economic reform. Reform these days is usually fashioned by internal personnel.
If one is intent on creating best practice regulation, it has to be holistic, like a jigsaw puzzle, where every piece is immaculately integrated within an enlightened conceptual frame work. Building regulation requires balancing consumer protection with delivery of cost effective, sound as-built product.
The conceptual framework should always be developed by a team that includes well-credentialed lawyers, economists and technocrats (and someone with corporate memory), all of whom must have a pedigree in effective and utilitarian microeconomic law reform. There is no place for egos or reputation builders intent on self-aggrandisement.
The reformers’ task is vitally important as ill-considered regulations cause deaths, litigation and economic impediment. There is no place for the protection of ideological turf; people don’t own reforms and one shudders when one hears of reforms being characterised as the “Smith reforms” or the “Johnson reforms” or the like. No single person owns the reform agenda; the government of the day owns the reform agenda and it needs the imprint of industry and consumers alike.
Years ago, when I was in the Federal government, an old stalwart said the papers aren’t interested in building control, arguing that construction copy is too boring and unsexy. What this meant was that the code for building regulation was working. Now you can’t get building control out of the papers, which means building control is not working. If certain jurisdictions want to get building control off the front pages, they may wish to go about their business differently when they look to reform. Jurisdictions may consider the mileage in comparative analyses, best practise building regulation and the deployment of seasoned microeconomic reformers.
The use of internal law reformers requires rethinking – bureaucracies need to open up and show a preparedness to relinquish some ownership of the process. Propositions have to be tested, interrogated, cross-examined and thrashed out by communities of enlightened actors. Machiavelli spoke of the dangers of law reform, the fact that it’s a thankless task and can be a war-like, given that it is sometimes a war against the status quo.
One must remember that it’s all very well winning the war but to little avail if you can’t win the peace. The fruits of law reform have to positive for industry and consumers, for only then can one enjoy the peace.