It’s almost impossible for any consumer to figure out Australia’s blueprint for ‘building control,’ but after years of commitment and dogged detective work, the ‘rules’ can now be revealed.
The regulations - the ‘Bizarre Building Rule Book’ if you will - was fabricated to feign consumer protection whilst ironically ensuring building industry interests t are ‘the protected’ and consumers are ‘the protected not’!
At first glance, there is an appearance of a building bontrol system, with many apparent laws and regulations. But as confirmed from extensive research and reinforced through the bitter experience of many thousands of consumers, behind the public façade of rules, the normal conventions have been circumvented. Instead of ‘controls’ commanding compliance from the building class, under the Bizarre Building Rule Book, the consumer class has been consigned to be controlled.
The façade of building control
The dilettantes might point to the fact that there are various Building Acts, building regulations, the Building Code of Australia and Australian Standards, and of course our Australian Consumer Law. Yes, we have an incredible number of ‘laws’. Many, however, are flawed and all are unbalanced. Where they do exist to benefit consumers, they are not enforced. In effect, beneath the façade, one discovers that building and consumer laws have been constructed to afford colossal commercial advantage to building and its associated offshoot industries, and conflictingly conferred massive disadvantage and detriment upon consumers.
The legislation, legal framework and governance structure pertaining to ‘building’ have all evolved over decades to be complex and convoluted. The scheme was contrived to be intelligible for building business interests, and simultaneously to be incomprehensible and confusing for the average consumer.
The key to this enigma is in understanding that building’s ‘Rule of Law’ was fashioned to be inequitable and under this exceptional version of the Rule of Law, the illegitimate has been deemed lawful, with the benefits for the elites and the injurious outcomes for consumers artfully obscured. As now verified, the reality for building consumers is the antithesis of the government’s proclaimed policy.
The Rule of Law
Founded on democratic ideology, there are universally accepted standards of the Rule of Law. The underlying principles include laws being enacted, administered and enforced fairly; protecting fundamental rights; delivering an independent and ethical justice system; and accountability for the government and its officials. Laws exist to encourage compliant conduct beneficial to the majority in society, thus dictating regulation of unwanted or harmful behaviour through enforcement.
In stark contradiction to the principles of the Rule of Law, in the building industry the rule of the vested interests has been ratified by government. The policy propping up the legal framework and the atrocious corporate governance practices form the bedrock of the government’s refusal to control the contemptuous cowboys by applying appropriate sanctions to discourage unscrupulous and unconscionable conduct. Similarly, this explains the lack of will to curb the market excesses, to create any possibility of ‘fair trading’ or to safeguard consumers.
Paradoxically, the Rule of Law has been turned on its head!
The Rule of Unruliness
As a test of fairness, we can reflect on how the laws have been enacted and administered. Since consumers are the number one stakeholder group and responsible for funding the trillion dollar building industry, one would imagine that they would have some influence and input.
On the contrary, consumers have been denied the opportunity to contribute to formulating policy, and equally denied access to any consultation on new legislation. In addition, despite their magnanimous efforts to contribute to the administrative process through consumer representation on the boards and committees, they have been debarred, deprived of oxygen and suffocated into silence.
Consequently, the ‘laws’ enacted are unfair, and overtly biased in favour of business. Under building contract law and advised by the ‘consumer protection’ officials, owners are forced to make stage payments to the builder regardless of major building defects, regardless of certifiers’ approval of works they know to be structurally unsound, and regardless of the builder not being entitled to any money.
As these cases confirm, under the ‘laws’ such builders are enabled to ignore their contractual obligations and the surveyors can shirk their responsibilities without any penalty or fear of punishment. The building interests are ‘legally’ accommodated through a combination of prejudicial ‘laws’ and the obliging officials’ commitment to zero enforcement.
As happens in hundreds of thousands of cases each year, cowboy builders coerce owners into ‘legally’ handing over advance payments for buildings before running away and leaving the owners to face the consequences. Commonly, these ‘builders’ fleece owners of their money due under the contract and then vanish. The lopsided legislation supports such recalcitrant builder misconduct, as one typical case will illustrate.
An unethical builder ran away with around $1.2 million, leaving the building incomplete, totally defective and not rectifiable. Then one day, the large windows fell to the ground and the roof blew off. Large sheets of iron went flying across the street, posing a dangerous risk to passers-by. The council served a building order on the owners who had to immediately pay for the roofing and windows to be secured or face a hefty fine.
It was obviously the builder’s fault, but the innocent owners were penalized. They did not create the defects, had already paid for the super defective work causing this damage, and then under the ‘law’ they were made responsible for the incompetent builder’s failures. The ‘Rule of Law’: those with no say are compelled to pay!
Rules of Engagement
Before making a decision to spend a huge amount of money, consumers usually do their homework. But in building, no matter the dedication to know the ‘Rules of Engagement’ and minimize the risks, it is an unqualified impossibility.
No amount of digging will unearth the illimitable cowboys or their past histories. No amount of determination will disclose the meaningless ‘registration’ regime, the ‘no touch’ regulatory culture or the widespread sub-standard building practices. No efforts will change consumers’ ignorance status or reveal that engaging in building will bind them as ‘controlled’ with a high probability of detriment, the intended casualties of ‘collateral damage.’
How have the rules been constructed? A few examples to illustrate the disparity between business and consumers:
- Information asymmetry severely disadvantages consumers. The business/bureaucracy partnership will not provide truthful and accurate information, preventing precautionary defence. The ‘rules’ prohibit consumers protecting themselves!
- Consumers are commonly forced into ignorance. Despite repeated requests to building companies to obtain information on the DDI insurance, information is refused and often not received prior to owners paying their deposit – the requirement by ‘law’ is ignored!
- Builders should allow owners access to the site, but regularly they use their superior position to illegally lock owners out, claiming that they have ‘control’. Hence owners do not find out that their ‘dream home’ building has major defects or requires demolition (cannot claim insurance) until too late when they have paid all the money!
- Most new building contracts are unfair because under the Australian Consumer Law a contract over $300,000 (most new contracts) is exempt from unfair contract terms’ conditions. Building’s vested interests managed to make ‘legal’ what is otherwise ‘illegal’!
- Oddly, an occupancy permit “is not evidence that the building or part of the building to which it applies complies with the Building Act or Building Regulations.” At the very end of the building project, owners learn their life savings have purchased a dwelling that does not meet minimum building/safety standards – a dwelling that was approved ‘legally’!
- When owners discover that they have been robbed, left with a disastrous building, they then learn that there are no ‘warranties’ as stated in their contract, the builder runs away, negates the defects and the ‘rules’ officially empower him to do so!
- Once owners realize their building plight has been deemed ‘in dispute’, their only path is a biased, imbalanced, adversarial system. Here the ‘Rules of Evidence’ are not applicable and the odds are stacked against them. The usual outcome is more financial loss and years of pain and suffering, the unknowing owner caught in a stitched up system and little chance of justice!
When the damage is done and building consumers learn that they have been delivered a lemon, there are no ‘Lemon Laws’ to protect them. In building, this aberration is entirely ‘legal’. The imbalance in power has resulted in an empowered business class and a powerless consumer class, the ‘ruled in’ and the ‘ruled out’!
The philosophy that the building business must be about profits is wrong. It should be primarily about people and providing them with quality buildings. Thus, although we have now cracked the code and deciphered the disadvantage of the Bizarre Building Rule Book, the quintessence of irrationality continues.