In 25 years as a barrister in construction, I have seen considerable growth in terms of private certification, and have observed not only the impact of litigation in this area but also a number of problems in the system, including some certifiers being too close to their clients and others not demonstrating sufficient levels of respect for their role in terms of compliance regulation.
The situation in Victoria, whereby two scathing reports from the Auditor General and the Ombudsman with regard to the building control system led to the demise of the Building Commission, underscores just how serious problems in this area can be.
Whilst lawyers are good at criticising, our profession must go beyond this and put forward constructive suggestions.
Accordingly, here are six ways I would change the system.
1. A floor on surveyor fees
Whilst the role of building surveyors is integral to public safety, the pressure they face as private operators competing for work has led to cases of quotes which are unrealistically low to the extent they do not allow the practitioner in question to adequately discharge their duty of care whilst still earning a sufficient level of financial reward for their effort.
This has been happening for years. Back in 2001, for example, when presiding over a case involving a 16-year-old who became a quadriplegic after falling from a non-compliant balustrade in 1996, Victorian Supreme Court Justice Eames J observed the amount charged by the building inspector was woefully inadequate given the magnitude of the task.
More than a decade later, this is still happening, with unrealistically low fees inevitably leading to shortcuts and compromised work. Only a minimum floor price which certifiers are allowed to accept for their services will stop this.
2. Mandatory audits
In the legal profession, we have to be audited three times per year, regardless of whether or not there are any complaints against us.
This is not the case with private certifiers, who are not required by law in Australia to undergo any form of periodic tests with regard to either their capacity to carry out their work in a satisfactory manner or their performance in doing so.
This should not be the case. The work of surveyors affects public safety. Failure to perform duties adequately can cause serious injury or loss of life.
The Japanese have a mandatory auditing regime in place. We should too.
3. Mandatory CPD
A building surveyor is a professional and, as such, must ensure they keep up to date with new developments and that their skills and practices meet best-practice requirements.
New South Wales inserted a requirement into the law when they introduced private certification in the 1990s which required certifiers to undertake two days of refresher training each year, which involves ‘tooling up’ on the Environmental Planning and Assessment Act and the Building Code of Australia (BCA).
This is sensible policy. Other states should follow suit and mandate ongoing professional development requirements.
4. Subject alternative solutions to peer review
In my view, this is probably the single biggest threat to the integrity of the building process in Australia today – private certifiers issuing permits for alternative solutions where aspects of the design do not comply with the BCA or Australian standards, a situation which places excessive responsibility on one person and introduces too much vulnerability to coercion or expedience.
Alternative solutions should not be sanctioned without peer review. Legislation should immediately be enacted to prevent this from happening.
5. More oversight power
The most robust and comprehensive powers regarding practitioner oversight in Australia can be seen in New South Wales, where there is even recognition under the ICAC legislation that accredited certifiers are public officers and fall within the ICAC jurisdiction.
I commend this regime, which serves as a template other states should follow.
6. Grade certifiers
Again, New South Wales serves as the national benchmark, where a grading system regulates the level of work a certifier can perform according to their level of experience.
As with the above point about oversight power, this is a sensible system which other states should follow.