Given the extent of reform happening across various jurisdictions in Australia, along with significant levels of disquiet from both the industry and the consumers it serves, now seems like an important time to step back and think about the key elements which form the basics of effectively functioning building legislation that delivers positive outcomes for all stakeholders.

Taking the interests and needs of all parties into account raises the question: what would a best practice Australian Building Act look like?

 Here are eight suggestions:

 1)     Clear objectives.

The core objectives of any construction industry legislative regime are not difficult to understand: adequate protection for consumers and aspiring property owners; deliverance of a quality, safe end product and built environment at reasonable cost; and adequate levels of professionalism and accountability and insurability throughout the building process.

These should be clearly stated up-front.

2)     A Minister and  Ministry of Construction

The building sector is vital not only in terms of the economy but also in providing safe and healthy environments for people to live, work and play.

Because of this, there should be a dedicated Minister or Ministry and arm of government responsible for overall building regulation, which would benchmark regulation against international standards, work with the industry and consumers to address failings (including implementing timely and sensible corrective action where systematic failure occurs) and ideally, benchmark itself against world best practice technology and systems.

Although this would be a governmental body, a peak committee which includes industry and consumer representatives would need to report to the head of the executive on the effectiveness of the regime and the legislation.

3)     A Practitioner Registration System

Any actors involved in the building process who are not adequately qualified, experienced and insured for the level of work they perform or who fail to carry out their work satisfactorily represent a threat to consumers and the industry’s reputation and should not be allowed to continue to practice.

What is needed, therefore, is a robust system of registration, practitioner oversight and discipline overseen by a board comprising both industry peers and consumer representatives which has sufficient power to investigate, prosecute and censure where necessary.

This includes any key practitioners involved in the process: builders, construction managers, architects, plumbers, building surveyors, building inspectors, draftsperson, electricians, engineers and expert witnesses that give evidence in building disputes – all of whom should be suitably qualified and appropriately insured.

4)     A User Pays Auditing Regime

At the moment, investigations into building practices happen only when a complaint is made or building failure occurs and even then, these take place only after the event.

A more proactive approach would involve subjecting practitioners to a compulsory system of random and annual audits – the cost of which would be paid for by the practitioner in question via an auditing fee.

Such a system could be used to identify and rectify problems before damage occurs.  For practitioners, fees incurred would be part of the cost of doing business, and would be more than worth it in light of current amounts being spent on damage control, litigation and rectification.

5)     A strong regime for building surveyors.

Whether employed by the council or in the private sector, the importance of building surveyors  to the general public cannot be understated and as such these practitioners should be subject to a strong regulatory regime.

This would include:

  • Being appointed by property owners only, not by building practitioners
  • Limiting private surveyors to assessing approvals on the basis of compliance with prescriptive regulations (no room for discretion) and prohibiting them from sanctioning performance based designs
  • Regulating fees to ensure these are adequate so as to enable performance of duties in a satisfactory manner (no fee cannibalisation)
  • Ethical requirements which are codified in the act of parliament (New South Wales already does this, other states should follow)
  • Mandatory inspection junctures following the issuance of permits
  • Appropriate powers to issue compliance notices and enforcement orders – copied to the practitioner oversight body where non-compliance with such orders occurs.
  • A changed name - outside the building industry, no one knows what a building surveyor or principal certifier is. Call them construction regulators or building code enforcers instead.

6)     A strong building approval process

This is an area we have pretty much got right at the moment. Building approvals cannot be granted until planning permits are issued and the designs are considered compliant with the relevant technical codes and standards and occupation cannot be sanctioned until the building is fit for occupation. There is not much change required in this area.

7)     A Building Permit Appeals Board

Staffed by part-time experts and lawyers along with a complement of consumer representatives, such a body would need to be independent of any other arm of the regulatory executive and should preside over building consent disputes in a prompt and cost effective manner. The Building Approvals Board in Victoria is a good example.

There could also potentially be fast track procedures where, subject to having at least one consumer representative on every panel, applicants could pay significantly higher sums in order to get hearings expedited.

Whilst some feel this responsibility could be migrated to tribunals, others remain concerned doing so could push out decision times and costs and add to the taxpayer cost associated with decision making, as tribunal members generally demand higher levels of remuneration compared with reputable industry practitioners and consumer representatives, whose primary motivation for assuming such responsibilities revolves around contribution to the industry and society in general.

8)     Clear and Fair Liability laws

Whilst sensibly, time limits for the initiation and conclusion of law suits currently sit at 10 years around most of the country, and a fair system of proportionate liability is in place, what is not common outside Victoria and the Northern Territory is compulsory insurance for building practitioners.

Proportionate liability is one thing, but without mandatory practitioner insurance, consumers remain exposed and may not be able to recover costs for rectification even when judgements are awarded in their favour.

If all of the above are in place, then the Building Act should deliver positive outcomes for all concerned.

Policy makers should take note, and act in areas where our laws are not delivering.

  • Its enchanting stuff. Last week I attended the Association of Accredited Certifiers. The NSW Assistant Minister for Planning announced the appointment of former NSW Treasury Secretary, to review the Building Professionals Act 2005 and continue to reform the NSW planning system. This runs the risk of achieving what the NSW Inquiry into Contractor Insolvency achieved. Little if anything. Lovegrove knows that construction in Australia needs a bigger overhaul than just regulations. He knows the problems are systemic. The status quo thrives on risk minimisation and avoidance of accountability. The major professional and industry associations act as gatekeepers. They are forced to defend their lowest common denominator members. What chance Kim?

  • Professor Kim Lovegrove thank you for your great work .
    As long as the Builders dont ,have the availability of insuring them self with professional indemnity Insurace ,
    The playing field will remain unfair to the Builders
    and a legal honey pot for the legal Departmend ,
    stillcosting the Coverment of the day severe amounts of money on faulty workmanship .

  • And further to this can you list what permits you have issued or assessed or inspections you have undertaken to conclude your "informed reason" for this article.

    Or is it just more solicitation for "work"

  • Thanks for your thoughts David, Gerrit & Mick. An interesting point Mick- good building work doesn't require lawyers, that`s a "hole in one". It`s poor work that ends up in my fraternity`s hands. As to marketing for work, I wish I still had the energy. Regarding the NSW reforms David I wish the civil servants the very best because law reform is always challenging & here`s the thing; a preparedness on the part of the government or any government for that matter to reform is laudable so God speed and GO THE MIGHTY SWANS.

  • This is an insightful and practical article. It demonstrates how useful it would be to have a Best Practice Australian Building Act, especially to protect consumers, as the building industry can be difficult to navigate and it would be most helpful if it was known that the key participants are all registered.

  • I couldn't agree more, good building practice doesn't require the involvement of the legal profession. Bad building practice is where our assistance is sought out. Hence the need for reforms which address the very pertinent key steps identified in Professor Lovegrove's article.

  • "A Practitioner Registration System"

    "* Regulating fees to ensure these are adequate so as to enable performance of duties in a satisfactory manner (no fee cannibalisation)
    * Ethical requirements which are codified in the act of parliament" – ditto.

    We used to have all of this until deregulation became the fad in the '80s and decimated the construction and allied professions leading to substandard work as a consequence of poor fees and linear management.

  • If you are seriously thinking about reforms, then you should perform the requisite research into how other governments are handling these issues (ie – the individual states of the USA), and the adversities that sometimes result. Equally important to the issues of licensure and insurance, are the issues of property owners' rights, the right to receive compensation, and public safety.

    I'm a member of a local Code Adjustment Board, trying to help Applicants achieve acceptable alternatives without materially altering the letter of the Law. Auditing Regimes can become a heavy hammer brought crashing down on an insignificant nail and can be a very subjective approach to a perceived problem, leaving the surrounding material with a deep scar.

  • An insightful and practical article on the key elements required in any contemplated reform to building law and regulation in Australia.

  • It would be good to see more uniformity across the Australian jurisdictions in building law, albeit there are some common themes relating to building suveyors. An interesting and thought provoking article thanks Kim.

  • I wonder about this. We have a National Building Code, but it is full of amendments from each of the states. We have great variation within each state with the Town plans. As a certifier, I have problems with owners hiring our services. They know nothing about construction and expect us to aid them to defraud the Builder. They cannot accept that we work for the community NOT the person that hires us. A bit like the mouse in charge of the Cheese. Regulating fees is great, but how? I have councils using rate payers money to subsidise work, whilst we have to pay exhorbinant fees just to obtain information from them to enable us to work. We do need Education of the public in what we do. 16 years on and they still talk Council instead of private

  • Good debate initiated by Kim Lovegrove. However the bad building work goes on.
    I inspected a property today after the "mandatory" inspections were undertaken. My report in summary involves plumbing faults, framing faults, roof covering faults, and sub standard workmanship. The fix ??? Every person who works on a building site should be registered with the Building Practitioners Board, and hold professional indemnity insurance (including builders) to protect the consumer and force the tradespersons to "lift" their standards or face de-registration.This should replace the "junk insurance" that is mandatory but does nothing to promote good building work or protect the consumer.